Thomas et al v. Williams

Filing 144

ORDER AND OPINION denying 130 Motion for Reconsideration. The statement discussed in Section (3) will be stricken from the Court's previous Order at entry no. 125..(Signed by Judge Melinda Harmon) Parties notified.(jdav, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BARBARA ANN THOMAS, et al,
Plaintiffs,
VS.
J.J. WILLIAMS, et al,
Defendants.

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October 18, 2016
David J. Bradley, Clerk

CIVIL ACTION NO. 4:14-CV-2711

ORDER AND OPINION
Before the Court is Plaintiffs’ Motion for Reconsideration (Document No. 130),
Defendants’ Response (Document No. 131), and Plaintiffs’ Reply (Document No. 132). After
considering these documents, the facts in the record, and the applicable law, the Court finds that
Plaintiffs’ Motion for Reconsideration (Document No. 130) is DENIED.
Background
The facts of this case are laid out fully in the Court’s April 1, 2016 Order. (Document No.
125). In that Order the Court granted Defendant J.J. Williams’ (“Williams”) Motion for
Summary Judgment regarding Plaintiffs’ fourth and fourteenth amendment claims, because the
Court found that Williams was entitled to qualified immunity on those claims. Plaintiffs then
filed a Motion for Reconsideration of that Order. (Document No. 130).
Standard of Review
Although the Federal Rules of Civil Procedure do not specifically provide for a “motion
for reconsideration,” a motion denominated as such that challenges a prior judgment on the
merits is treated as either a “motion to alter or amend a judgment” under Rule 59(e) or a motion
“for relief from a final judgment” under Rule 60(b). Lavespere v. Niagara Mach. & Tool Works,
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Inc., 910 F.2d 167, 173 (5th Cir. 1990). “Under which Rule the motion falls turns on the time at
which the motion is filed. If the motion is filed no later than [28] days [after] the rendition of
judgment, the motion falls under Rule 59(e); if it is filed after that time, it falls under Rule
60(b).” Texas A&M Research Found. v. Magna Transp., Inc., 338 F.3d 394, 400 (5th Cir. 2003)
(alterations omitted) (quoting Lavespere, 910 F.2d at 173).1 “A motion to alter or amend the
judgment under Rule 59(e) must clearly establish either a manifest error of law or fact or must
present newly discovered evidence and cannot be used to raise arguments which could, and
should, have been made before the judgment issued.” Rosenblatt v. United Way of Greater
Hous., 607 F.3d 413, 419 (5th Cir. 2010) (alterations and internal quotation marks omitted)
(quoting Rosenzweig v. Azurix Corp., 332 F.3d 854, 864 (5th Cir. 2003)). “To prevail on a Rule
59(e) motion, the movant must show at least one of the following: 1) an intervening change in
controlling law; 2) new evidence not previously available; 3) the need to correct a clear or
manifest error of law or fact or to prevent manifest injustice.” United States v. Saldivar, No.
2:03-CR-182-2, 2014 WL 357313, at *1 (S.D. Tex. Jan. 31, 2014).2
Discussion
Plaintiffs argue that: (1) the Court erroneously defined “listed location,” (2) the Court
erroneously relied upon Defendant’s state of mind, (3) the Court erroneously concluded that
Plaintiffs did not instruct Williams to leave their home, (4) Plaintiff did instruct Williams to
leave, (5) the Court erroneously admitted hearsay, (6) the Court erroneously decided Williams is
entitled to summary judgment based on his intention, (7) the Court erroneously granted summary
judgment based upon an improper conclusion that a fact was unlikely, and (8) Fifty-six

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Therefore this Motion will be considered under Rule 59(e).
With the exception of Plaintiffs’ third argument, Plaintiffs clearly fail to meet this standard in their Motion, and do
not show new evidence, a change in law, or manifest injustice. However, the Court will briefly address each of their
arguments.
2

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Thousand, Seven Hundred Dollars in U.S. Currency v. State and Guzman v. State are
distinguished. (Document No. 130). The Court will consider each argument in turn.
(1) Listed location
Plaintiffs again raise their argument that the City of Houston’s 30(b)(6) representative’s
testimony that he interpreted “listed location” to mean “5818 Hirsch” creates a fact issue as to
whether Williams intentionally or recklessly included a misstatement in his affidavit. Id. at 2.
However, the fact that there is another possible interpretation of the affidavit does not
demonstrate that the affidavit was knowingly or recklessly false; it does not show that Williams
knew that any of his statements were false, nor does it show that he “in fact entertained serious
doubts as to the truth” of his statements. (Document No. 125 at 11) (citing Hart v. O’Brien, 127
F.3d 424, 449 (5th Cir. 1997)). Plaintiffs’ argument fails.
(2) State of mind
Plaintiffs claim that the Court’s consideration of Williams’ subjective intent was
inappropriate. (Document No. 130 at 3). However, the portion of the Opinion which is objected
to discusses whether or not Williams intentionally or recklessly included material misstatements
or omissions in his affidavit to the magistrate judge, who issued the warrant for Plaintiffs’
residence. This inquiry must include consideration of what Williams knew and did. As explained
in Winfrey,
We recognize that the subjective motive of an officer executing a facially valid warrant
generally is not an appropriate inquiry. [Plaintiff], however, alleges that the affidavits
were knowingly or recklessly false. Our inquiry, then, necessarily must consider what the
officers knew and did in evaluating whether it was objectively reasonable for them to
believe that their conduct was lawful.
Winfrey v. San Jacinto Cty., 481 F. App'x 969, 981 at n.9 (5th Cir. 2012) (internal citations
omitted). The Court therefore correctly considered what Williams knew and did in its
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determination that he acted in an objectively reasonable way. Plaintiffs’ argument fails.
(3) Whether Plaintiffs instructed Williams to leave their home
Plaintiffs argue that the Court misapplied the summary judgment standard, stating that:
“Defendant was incapable of meeting his burden to show Plaintiffs did not instruct him to leave
their residence because he unilaterally elected to refrain from both (1) deposing Plaintiff and (2)
arguing that Plaintiffs did not instruct him to leave. Plaintiffs had no burden to dispute facts
never raised by Defendants.” (Document No. 130 at 4).
First, the Court believes that Plaintiffs have misstated their burden here. It is Plaintiffs
who were required to rebut the qualified immunity defense “by establishing a genuine fact issue
as to whether the official’s allegedly wrongful conduct violated clearly established law.” Brown
v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). Regardless, though, the Court will strike its
statement that “Plaintiffs offer no evidence that either Ms. Thomas or her son asked Williams to
leave.” (Document No. 125 at 19). However, striking this statement does not alter the Court’s
finding that Williams acted reasonably under the law:
Upon reading Simmons and Pray, it would be unreasonable for Williams to continue the
search; however, Williams could have reasonably interpreted those cases as allowing him
to remain in the apartment in order to explain his actions to Ms. Thomas. Therefore
Williams could have “reasonably interpreted the law to conclude that” his actions were
justified, and qualified immunity as to his remaining in the apartment is appropriate.
Id. at 19-20. Therefore, although the Court will strike this statement, Plaintiffs’ Motion for
Reconsideration still fails.
(4) Plaintiff’s affidavit stating that she did ask Williams to leave
Plaintiffs then ask that the Court admit Barbara Williams’ affidavit, stating that she
“instructed the officers to leave my home several times.” (Document No. 125-1). However, this
is not new evidence, and Plaintiffs’ submission of it now is untimely. The Fifth Circuit has held
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that “an unexcused failure to present evidence available at the time of summary judgment
provides a valid basis for denying a subsequent motion for reconsideration.” Templet v.
HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004) (citing Russ v. Int’l Paper Co., 943 F.2d
589, 593 (5th Cir. 1991)). See also Saldivar, 2014 WL 357313, at *1 (“To prevail on a Rule
59(e) motion, the movant must show at least one of the following: 1) an intervening change in
controlling law; 2) new evidence not previously available; 3) the need to correct a clear or
manifest error of law or fact or to prevent manifest injustice.”) (emphasis added).
Relevant factors in considering whether to allow such evidence are as follows: “[1] the
reasons for the moving party's default, [2] the importance of the omitted evidence to the moving
party's case, [3] whether the evidence was available to the non-movant before she responded to
the summary judgment motion, and [4] the likelihood that the nonmoving party will suffer unfair
prejudice if the case is reopened.” Lavespere, 910 F.2d at 174 (5th Cir. 1990). Plaintiffs offer no
reason for failing to submit this evidence previously, other than their attorney’s “personal
wrongdoing” (Document No. 130 at 4), and this evidence was clearly available before Plaintiffs
responded to the motion for summary judgment. Furthermore, Williams will be forced to
respond to this untimely evidence if it is admitted. Although the evidence may be important,
these three factors demonstrate that it should not be admitted on reconsideration. See ICEE
Distributors, Inc. v. J&J Snack Foods Corp., 445 F.3d 841, 847-8 (5th Cir. 2006) (It was not an
abuse of discretion for the district court to refuse to consider “newly proffered evidence” when it
was plainly available to plaintiffs before summary judgment.).
(5) Hearsay
Plaintiffs tried multiple times previously to exclude the statements of the confidential
informant (the “C.I.”), but were unsuccessful. (See Document No. 73, Motion to Exclude or
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Strike Affidavit of Defendant Williams; Document No. 112, Motion to Exclude Defendant
Williams’ Summary Judgment Evidence; Document No. 123, Motion for Reconsideration). The
Court has already denied each of those motions, and will not weigh this issue again. (See
Document Nos. 96, 118, 139).
However, the Court will briefly explain again that this evidence was not cited for its
truth. “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted.” United States v.
Montes-Salas, 669 F.3d 240, 251 (5th Cir. 2012) (citing Fed. R. Evid. 801(c)). The Court did not
rely on the truthfulness of the C.I.’s statements, i.e. whether he or she actually bought drugs from
Nash or whether he or she actually saw Nash enter apartment 5818. The statements of the C.I.
were used to show the basis for obtaining the search warrant, not for their truth.
(6) Williams’ intention
Plaintiffs appear to argue3 here that Williams intentionally violated the Fourth
Amendment’s particularity requirement when he requested the warrant. (Document No. 130 at
6). However, the Court already explained that the warrant did not violate the particularity
requirement, and was valid when issued. Id. at 15-16. Therefore this argument fails.
(7) The protective sweep
Plaintiffs take issue with the Court’s finding that “[c]onsidering the brevity of the
protective sweep, which took 30 to 45 seconds, it is unlikely that Williams could have come to a
realization that he was in the wrong apartment, and aborted the sweep, before its completion.”
(Document No. 130 at 7) (citing Document No. 125 at 20-21). The Court should have stated
more clearly its finding that Williams did not fully realize he was in the wrong apartment until
after the completion of the sweep. Plaintiffs do not cite any new evidence which changes this
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The Court is not entirely sure what argument Plaintiffs are making here.

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finding.
Most importantly, though, the Court noted that “there are no cases cited by Plaintiffs
which would require Williams to abort a safety sweep upon realization that the officers were in
the wrong apartment.” Id. at 21. Therefore this right was not “clearly established at the time of
the disputed action,” and qualified immunity is appropriate. Brown v. Callahan, 623 F.3d 249,
253 (5th Cir. 2010).
(8) Fifty-Six Thousand, Seven Hundred Dollars in U.S. Currency v. State and Guzman v.
State
Plaintiffs argue that these cases are each distinguishable from the case at hand, and
therefore request reconsideration. (Document No. 130 at 7-8). However, the distinguishing facts
in those cases do not change the Court’s determination that Williams “made an ‘honest mistake’
when entering the Plaintiffs’ home,” and therefore is entitled to qualified immunity. (Document
No. 125 at 13) (citing Hunt v. Tomplait, 301 F. App’x 355, 359 (5th Cir. 2008)). This finding is
discussed extensively in the original opinion, and is based on a variety of case law in addition to
these two cases. (See id. at 13-15). This argument does not warrant reconsideration.
Conclusion
For the reasons stated above, the Court finds that Plaintiffs’ Motion for Reconsideration
(Document No. 130) is DENIED. However the Court also
ORDERS that the statement discussed in Section (3)4 will be stricken from the Court’s
previous Order (Document No. 125).

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The stricken statement is: “Plaintiffs offer no evidence that either Ms. Thomas or her son asked Williams to leave.”
(Document No. 125 at 19).

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SIGNED at Houston, Texas, this 18th day of October, 2016.
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MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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