David Gremar and Lorinda Innocencio v. Bexar County, Texas
ORDER DENYING 32 Motion for New Trial. Signed by Judge Xavier Rodriguez. (rg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
DAVID GREMAR, et al.,
BEXAR COUNTY, TEXAS
Civil Action No. SA-13-CV-434-XR
On this date, the Court considered Plaintiffs David Gremar and Lorinda Innocencio’s
motion for new trial and motion to supplement response to motion for summary judgment.
Doc. No. 32. After careful consideration, the Court denies the motion.
Plaintiffs David Gremar and Lorinda Innocencio were employed by the Bexar County
Precinct 3 Constable’s Office. Plaintiffs’ Second Amended Complaint alleges that this particular
office had a history of thefts, and that at some point during Plaintiffs’ employ, $1,000 disappeared
from the office safe. Doc. No. 23, at 1. Plaintiffs were subsequently prosecuted for the theft, but
the case was dismissed.
Plaintiffs brought a § 1983 claim alleging that Defendant Bexar County engaged in
malicious prosecution and conspired, with its agents, to deprive Plaintiffs of their Fourth, Fifth,
and Fourteenth Amendment rights. Defendant Bexar County moved for summary judgment on the
basis that Plaintiffs had failed to demonstrate a policy or custom. In a § 1983 claim, “local
governments, like every other § 1983 ‘person,’ by the very terms of the statute, may be sued
for constitutional deprivations visited pursuant to governmental ‘custom’. . . .” Monell v.
Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690-91 (1978). In order to establish
municipal liability under § 1983 there must be proof of a policymaker, an official policy, “and
a violation of constitutional rights whose ‘moving force’ is the policy or custom.” Piotrowski
v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001). Plaintiffs provided no evidence of
custom or policy in response to Defendant’s motion for summary judgment. As a result, on
January 30, 2014, this Court granted Defendant’s motion for summary judgment on the ground
that Plaintiffs had not created a fact issue as to custom or policy.
Plaintiffs now seek a new trial and to supplement their response to the motion for summary
judgment with the deposition of Rudy Garza (“Capt. Garza”), Captain with the Bexar County
Constable’s Office, Precinct 3. Motion at 1. In his deposition, dated January 28, 2014, Capt.
Garza “was asked to assume three things: (1) That there was $1,000.00 locked in a bag in the safe;
and (2) That the Plaintiffs cannot unlock the safe; and (3) That when he opened the safe the bag
was missing.” Id. at 1-2. Capt. Garza is then asked, assuming these possibilities to be true, and
assuming that Capt. Garza and Bexar County prosecuted the Plaintiffs knowing these three things
to be true, whether he agreed that under such facts this would constitute malicious prosecution. Id.
at 2. Capt. Garza responded, “If we assume these things.” Id. According to Plaintiffs, Captain
Garza was a witness to some of the underlying events, prepared an investigative report, and was
the complainant for the criminal charges.
Since there has not been a trial, and since Plaintiffs filed their motion within twentyeight days of judgment, the Court construes Plaintiffs' motion as a motion to alter or amend
judgment under Federal Rule of Civil Procedure 59(e). See Demahy v. Schwarz Pharma, Inc.,
702 F.3d 177, 182 n.2 (5th Cir. 2012) (explaining that a motion challenging a prior judgment
on the merits is treated as a motion to alter or amend judgment under Rule 59(e) if the motion
was filed within twenty-eight days after the entry of judgment); St. Paul Mercury Ins. Co. v.
Fair Grounds Corp., 123 F.3d 336, 339 (5th Cir. 1997) (construing a motion for new trial,
challenging an entry of summary judgment, as a Rule 59(e) motion to alter or amend
A Rule 59(e) motion to alter or amend a judgment is an “extraordinary remedy” used only
sparingly by the courts. Templet v. Hydrochem, Inc., 367 F.3d 473, 479 (5th Cir.2004). Such a
motion calls into question the correctness of the court's judgment, which “will not be disturbed in
the absence of a showing that it has worked an injustice.” Id. at 478; Tate v. Tex., 97 F.3d 810,
814 (5th Cir. 1996). The motion “serves[s] the narrow purpose of allowing a party to correct
manifest errors of law or fact or to present newly discovered evidence.” Templet, 367 F.3d at 479;
see also Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 567 (5th Cir. 2003). Additionally,
relief is appropriate when there has been an intervening change in the controlling law. Schiller,
342 F.3d at 567; Tate, 444 F. App'x at 724; 11 Wright, Miller & Kane, Federal Practice &
Procedure: Civil 2d § 2810.1 (2d ed.1995). A Rule 59(e) 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.” Templet, 367 F.3d at 479.
Because altering or amending a judgment is such an extraordinary remedy, the Rule 59(e)
standard favors denial of such motions. S. Constructors Grp., Inc. v. Dynalectric Co., 2 F.3d 606,
611 (5th Cir. 1993). Nevertheless, since specific grounds for granting a motion to alter or amend
are not listed in the Rules, a district court enjoys considerable discretion in granting or denying the
motion. Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 355 (5th Cir. 1993);
Templet, 367 F.3d at 477 (stating that a district court's Rule 59(e) decision will be reviewed only
for abuse of discretion). However, a court's discretion is not without limits. “The court must
strike the proper balance between two competing imperatives: (1) finality and (2) the need to
render just decisions on the basis of all the facts.” Edward H. Bohlin Co., 6 F.3d at 355.
Plaintiffs contend that they should be allowed to supplement their response to the
Defendant’s motion for summary judgment with additional evidence - the deposition of Capt.
Garza. However, Plaintiffs fail to demonstrate how this additional evidence is relevant to the
existence of a custom or policy on the part of Bexar County. As previously indicated, in order
to establish municipal liability under § 1983 there must be “proof of an official policy, a final
policymaker, and the policymaker's knowledge of, or deliberate indifference to, a risk of
constitutional violations.” See, e.g., Winfrey v. San Jacinto Cnty., 481 F. App'x 969, 976 (5th
Cir. 2012) (internal quotation marks omitted). No additional evidence of such a custom or
policy or an action by an official policymaker has been provided by Plaintiffs.1 As before,
Plaintiffs fail to demonstrate an official custom or policy and fail to establish that an official
policymaker acted with deliberate indifference. Plaintiffs’ supplemental evidence does not
cure these deficiencies. Accordingly, the motion to supplement the record is denied, and the
motion for new trial, being treated as a Rule 59(e) motion to alter or amend the judgment, is
Plaintiffs mention Capt. Garza and Constable Vojvodich (who prepared an investigation report) in their
response, but they do not argue or establish that Capt. Garza or Constable Vojvodich are official policymakers for
Bexar County. See Castro v. McCord, 259 F. App'x 664, 668 (5th Cir. 2007) (“[Plaintiff’s] failure to cite
authority . . . is not surprising in light of the district court's recognition of our caselaw that indicates that, as a
matter of law, constables are not policymakers.”); Jackson v. Ford, No. 12-50355, 2013 WL 5969706 (5th Cir.
Feb. 27, 2013) (“[I]n Texas, ‘[t]he sheriff is without question the county's final policymaker in the area of law
enforcement.’” (quoting Colle v. Brazos Cnty., Tex., 981 F.2d 237, 244 (5th Cir. 1993))).
In light of the foregoing, Plaintiffs’ motion for new trial and motion to supplement
response to motion for summary judgment is DENIED. Doc. No. 32.
SIGNED this 7th day of March, 2014.
UNITED STATES DISTRICT JUDGE
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