The Estate of James Sizer Sr. et al v. Martha Cameron et al
ORDER DENYING Plaintiffs' 77 Motion for New Trial. Signed by Judge Sam Sparks. (klw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
ESTATE OF JAMES SIZER, SR., by and
through his heirs Dorothy Sizer, Caroline
Wolff, and James Sizer, Jr., DOROTHY
SIZER, CAROLINE WOLFF, and JAMES
OFFICER MARTHA CAMERON,
OFFICER SAL VATORE REALE, and the
CITY OF AUSTIN,
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause,
and specifically Plaintiffs' Motion for New Trial [#77] and Defendants' Response [#78] in
opposition. Having reviewed the documents, the governing law, and the file as a whole, the
Court now enters the following opinion and order.
In their motion for new trial, Plaintiffs ask this Court to reconsider its order granting
Defendants' motion for summary judgment. The Court granted Defendants' motion after
carefully considering the events giving rise to this lawsuit which transpired on March 6, 2015.
Order of June 1, 2017 [#73]. Around 2:30 p.m. on March 6, 2015, James Sizer, Sr. made
three calls to 311 and 911 to request police assistance at his residence in Austin, Texas. During
these calls, Sizer advised the dispatcher his son was dangerous; if his son came on his property,
The facts recounted here are drawn from the summary judgment record, which includes, among other
things, the certified transcripts of the 311 and 911 phone calls made on March 6, 2015, dash cam footage from the
officers' patrol cars, and Corporal Reale's and Officer Cameron's depositions and affidavits.
Sizer would "point any gun" at him; and Sizer was "fully armed and ready for anything."
Between Sizer's first and second calls, a nearby neighbor called 911 to report he heard three
gunshots fired. Sizer admitted during his third call that he had fired three rounds of ammunition
"just so somebody would hear it." Officer Cameron and Corporal Reale were the first two
officers to arrive on the scene. They both testified they knew they were responding to a report of
"shots fired" where the suspect had threatened to shoot his son, and Officer Cameron expressly
stated she knew Sizer warned the dispatcher he was "armed and ready for anything." The officers
further testified they believed Sizer's son "may [have] be[en] shot and in need of life-saving
When Corporal Reale arrived on the scene, he saw Sizer standing barefoot in his
driveway, wearing pants and an untucked shirt. Corporal Reale testified he only had a visual of
Sizer's front and left side and feared he may still be armed. Officer Cameron, who arrived on the
scene seconds after Corporal Reale, testified she also lacked a complete visual of Sizer because
she could only see the right side of his body. As she approached, Officer Cameron informed
Corporal Reale she was holstering her service weapon and switching to her taser.
Corporal Reale issued eleven verbal commands for Sizer to get on the ground but Sizer
failed to comply. At one point, Sizer explained he could not get on the ground because he was
physically disabled. Given Sizer's continued non-compliance with his orders to get on the
ground, Corporal Reale instructed Officer Cameron to "go lethal and I'll go hands on." Rather
than "go lethal," however, Officer Cameron continued to train her taser on Sizer. Officer
Cameron testified she chose to maintain non-lethal cover because she was concerned that if the
takedown went bad she "would have had to shoot the subject." Moreover, Officer Cameron
explained she perceived the risk of Corporal Reale going "hands on" with Sizer as too high,
because Sizer had just fired a weapon and the officer had not yet confirmed he was unarmed.
With her taser trained on Sizer, Officer Cameron gave Sizer two commands to get on the
ground. When Sizer failed to comply with these orders, Officer Cameron yelled, "taser, taser,
taser," before tasing Sizer once in the back for approximately five seconds. Sizer fell backward
and hit his head. The officers then called EMS. While they waited for EMS to arrive, the officers
conducted a protective sweep of Sizer and his residence. They learned Sizer was unarmed and no
one was discovered inside his residence.
Sizer was arrested for discharging a firearm in a municipality and transported to St.
David's North Austin Medical Center, where a CT scan revealed he suffered "a left frontal
subdural hematoma." The following day, Sizer was discharged to APD "in improved and stable
condition" with instructions to "follow up with his primary care physician or other physician in
the next week." APD transported Sizer to the Travis County Jail, where he remained until March
9, 2015. Four days later, on March 13, 2015, Dorothy Sizer, Sizer's wife, came home to find
Sizer on their bathroom floor, deceased. The medical examiner concluded Sizer died "as a result
of complications of blunt force head trauma" with a "contributing factor" of "acute and chronic
Plaintiffs, the heirs and surviving family members of Sizer, filed this action on December
10, 2015, alleging Section 1983 claims for excessive force against Officer Cameron and
Corporal Reale and municipal liability claims against the City of Austin for, among other things,
failing to discipline, supervise, and train its officers and failing to implement adequate policies
governing the use of tasers. After a lengthy discovery period, Defendants moved for summary
judgment, which the Court granted on June 1, 2017. In that order, the Court found Plaintiffs had
failed to establish the officers' actions violated Sizer's constitutional rights and therefore
dismissed Plaintiffs' claims against both the officers and the City.
On June 23, 2017, Plaintiffs filed a motion seeking reconsideration of the Court's order
granting Defendants' motion for summary judgment. The parties fully briefed Plaintiffs'
reconsideration motion, and it is now ripe for consideration.
Though Plaintiffs style their motion as a motion for new trial, the Court construes it as a
Rule 59(e) motion for reconsideration of the Court's order granting Defendants' motion for
summary judgment. See
59(e) (giving each party twenty-eight days after entry of
a judgment to file a motion asking the court to alter or amend that judgment). "Reconsideration
of a judgment after its entry is an extraordinary remedy that should be used sparingly." Templet
HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004). "[S]uch a motion is not the proper vehicle
for rehashing evidence, legal theories, or arguments that could have been offered or raised before
the entry of judgment," but instead is intended to allow a court to correct manifest errors of law
or fact, to correct inadvertent clerical errors, or to present newly-discovered evidence. Id. Indeed,
the "remedy is so extraordinary that the standard under Rule 59(e) 'favors denial of motions to
alter or amend a judgment." Sanders
Bell Helicopter Textron, Inc., No. 4:04-cv-254-Y, 2005
WL 6090228, at *1 (N.D. Tex. Oct. 25, 2005). Although the decision to grant a motion to
reconsider is within the discretion of the district court, the decision should be made in light of
two "important judicial imperatives": (1) the need to bring litigation to an end, and (2) the need
to render just decisions on the basis of all the facts. Id.
In their motion for reconsideration, Plaintiffs ask the Court to reconsider the following
findings in its summary judgment order: (1) George Kirkham's expert report was unsworn;
(2) Officer Cameron possessed an objective and reasonable belief that Sizer posed an immediate
threat to the officers' safety; and (3) Officer Cameron received annual taser training. Because the
Court finds Plaintiffs arguments are insufficient to warrant reconsideration of its previous order,
Plaintiffs' motion is DENIED.
First, Plaintiffs argue the Court's finding that Kirkham's report was unswom was
"completely incorrect" and "an indication that Plaintiffs' motions" were not fully reviewed or
considered in rendering the Court's judgment. Plaintiffs direct the Court's attention to Kirkham's
affidavit attached as Exhibit 15 to Plaintiffs' response to Defendants' summary judgment
motion. Resp. Mot. Summ. J. [#63-7] Ex. 15 (Kirkham Dccl.). In this affidavit, Kirkham
testified, "all the matters stated in each of my two expert reports
are true, accurate and
correct[,]" and stated "Exhibit A" to his affidavit "contains copies of [his] reports." Id. ¶ 2.
Although Kirkham testifies to the accuracy of the reports attached to his affidavit, there is no
"Exhibit A" attached to Kirkham's affidavit, nor are his reports otherwise attached to the
Even assuming Kirkham's report was properly authenticated by this affidavit, however,
the Court's error in concluding otherwise does not warrant reconsideration of the Court's
ultimate finding that Defendants are entitled to summary judgment. Under Fifth Circuit
precedent, a court need not rely on the plaintiffs description of the facts, or an expert's
interpretation of these facts for that matter, where the record discredits that description. Carnaby
of Hous., 636
F.3d 183, 187 (5th Cir. 2011). Instead, the court should consider "the facts
in the light depicted by the videotape." Id. As this Court previously concluded, "[a] thorough
review of the officers' videos and the undisputed evidence regarding the information the officers
possessed compel this Court's conclusion that Plaintiffs failed to establish a constitutional
violation." Order of June 1, 2017 [#73] at
n.6. Kirkham's report, even
if considered proper
summary judgment evidence, does not create a fact issue as to whether Officer Cameron used
excessive force against Sizer.
Second, Plaintiffs dispute the Court's finding that Officer Cameron possessed an
objective and reasonable belief that Sizer posed an immediate threat to the officers' safety.
According to Plaintiffs, Officer Cameron could not have reasonably feared for the officers'
safety, and therefore justified her use of force, because Sizer was only passively resisting the
officers. In support of their argument, Plaintiffs cite the Austin Police Department (APD)'s
definition of "passive resistance," which states "[a] passively resistant suspect fails to follow
commands and, although not threatening, may be verbally questioning or disagreeing." Mot.
Recons. [#73] at 5. But the Court's finding that Sizer exhibited "passive resistance" is based on
binding Fifth Circuit precedent, not APD's definition of the
According to the Fifth
Circuit, an individual exhibits passive resistance when she merely refuses to comply with an
officer's orders. See Deville
Marcantel, 567 F.3d 156, 167 (5th Cir. 2009). To the extent
Plaintiffs construe Deville as holding a passively resisting individual can never be threatening,
the Court does not read Deville so narrowly. Plaintiffs' misplaced reliance on APD policy aside,
they have failed to point to any authority holding it is unreasonable for an officer to feel
Moreover, the Court notes that APD's policy expressly contemplates a situation where the suspect is not
necessarily exhibiting physical resistance but where it would still "be unsafe for officers to approach within contact
range of the subject." Pis.' Mot. Summ. J. [#35-5] Ex. 21 (APD Taser Policy) at 7. Based on Officer Cameron's
testimony that she deployed her taser because she believed the risk posed by going "hands on" was too high, Officer
Cameron's actions would comply with APD policy.
threatened by a suspect who, although not actively resisting the officers, remains non-compliant
and is potentially armed and dangerous.
Moreover, Plaintiffs have not shown, nor does the record reflect, that the Court erred in
concluding Officer Cameron possessed an objective and reasonable belief Sizer posed an
immediate threat to his son, who the officers believed "may [have] be[en] shot and in need of
life-saving medical attention." Plaintiffs have thus failed to meet their burden of showing the
Court committed a manifest error of law in concluding Officer Cameron's use of force was
neither clearly excessive nor objectively unreasonable.
Third, Plaintiffs contend the Court erred in failing to find Officer Cameron lacked taser
retraining or recertification. Yet Plaintiffs have failed to explain the import of this claimed error.
To the extent Plaintiffs are arguing Officer Cameron used excessive force because she failed to
prove she received taser retraining or recertification, Plaintiffs have cited no legal authority in
support of this argument and thus have failed to show reconsideration is warranted. If Plaintiffs
are instead arguing Officer Cameron's supposed lack of taser retraining or recertification
supports their municipal liability claims, this argument is likewise unconvincing. As this Court
previously held, Plaintiffs must first prove the existence of a constitutional violation in order to
hold a municipality liable for failing to properly train or supervise its officers or implementing
inadequate policies governing the use of tasers. See Order of June 1, 2017 [#73] at 25 (citing City
Heller, 475 U.S. 796, 799 (1986)). Having failed to do so, Plaintiffs' municipal liability
claims were properly dismissed.
Reconsideration of a court's final order and judgment is "an extraordinary remedy that
should be used sparingly." Templet, 367 F.3d at 479. To justify this extraordinary remedy,
Plaintiffs were required to show a manifest error of law or fact, an inadvertent clerical error, or
newly-discovered evidence. Having failed to do so, Plaintiffs are not entitled to relief under Rule
IT IS ORDERED that Plaintiffs' Motion for New Trial [#77J is DENIED.
SIGNED this the
day of July 2017.
UNITED STATES DISTRICT
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