Verdin v. Cook

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CHRISTOPHER VERDIN CIVIL ACTION

VERSUS NO. 18-548

CHARLES COOK, ET AL. SECTION "B"(5)

ORDER AND REASONS

Plaintiff filed a motion for new trial or, in the alternative,

for reconsideration. Rec. Doc. 98. Defendants Charles Cook and Joe

Cehan filed a response in opposition, which was adopted by

defendants Jerry Larpenter and Cody Guilbeaux. Rec. Docs. 106,

109. Defendants Larpenter and Guilbeaux subsequently filed a

supplemental memorandum in opposition. Rec. Doc. 111. For the

reasons discussed below,

IT IS ORDERED that the motion is DENIED.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The facts of this case are laid out in greater detail in the

Order and Reasons granting defendants’ motions for summary

judgment and are incorporated by reference here. Rec. Docs. 95,

96. In brief, plaintiff filed a complaint against defendants

pursuant to 42 U.S.C. § 1983 for alleged constitutional violations

in connection with his arrest on May 13, 2015. Rec. Doc. 1.

Plaintiff alleged that defendant officers used excessive force in

his arrest and retaliated against him for exercising his First

Amendment Rights. Id. at 4-6.

The Court granted defendants’ motions for summary judgment on

the basis of qualified immunity, finding plaintiff failed to meet

his burden of showing that defendants had violated clearly

established law. Rec. Docs. 95, 96. The Court subsequently entered

judgment in favor of defendants. Rec. Doc. 97. Plaintiff now files

the instant motion for new trial, or in the alternative, motion

for reconsideration.

THE PARTIES’ CONTENTIONS

Plaintiff seeks a new trial pursuant to Rule 59(a) on the

grounds that summary judgment in favor of defendants is against

the weight of the evidence, or in the alternative, reversal of the

judgment entered against him pursuant to Rule 59(e), on the grounds

that there is clearly established law supporting his argument

against defendants’ qualified immunity defense. Rec. Doc. 98.

Plaintiff argues that federal jurisprudence establishes that

defendants violated his clearly established rights. Rec. Doc. 98-

1 at 3-6. Plaintiff provides, for the first time in the instant

motion, cases he asserts establish a body of law showing plaintiff

had a clearly established right to: 1) be free from being pinned

to the ground with an officer’s knees in his back, (citing

Martinez-Aguero v Gonzalez, 459 F.3d 618 (5th Cir. 2006), Cry v.

Dillard, 2017 WL 2172944 (S.D. Miss. May 16, 2017), Davis v. Hinds

County, Mississippi, 2017 WL 4228659 (S.D. Miss. Sept. 22, 2017),

Alexander v. City of Round Rock, 854 F.3d 298 (5th Cir.2017)); and

2) be free from being yanked from a police vehicle and slammed

against the car while restrained (citing Bush v. Strain, 513 F.3d

492 (5th Cir. 2008), Curran v. Aleshire, 800 F.3d 656 (5th Cir.

2015), Scott v. Farris, 2005 WL 517500 (E.D. La. Feb. 18, 2005),

Alexander v. City of Round Rock, 854 F.3d 298 (5th Cir.2017)). Id.

Therefore, plaintiff argues that any reasonable police officer

would be on notice that defendant officers’ conduct violated

plaintiff’s clearly established rights and defendants are not

entitled to qualified immunity. Id. at 7-8. Additionally,

plaintiff cites a case that he asserts clearly establishes his

right to be free from retaliation against his protected speech

after his arrest and placement in the police vehicle. Id. at 9

(citing White v. Jackson, 2014 WL 99976 (N.D. Tex. Jan. 10, 2014).

LAW AND ANALYSIS

A Rule 59(e) motion calls into question the correctness of a

judgment.1 In re Transtexas Gas Corp., 303 F.3d 571, 581 (5th Cir.

1 This motion is not properly considered a motion for “new trial” because there

was no trial. A motion for new trial under Rule 59(a) is appropriate for cases

that have been tried to a jury or to the Court. Because the Court disposed of

this case on motion for summary judgment, the correct vehicle for

reconsideration of the Court’s judgment is a motion to alter or amend a judgment

under Rule 59(e). See Montgomery v. Wells Fargo Bank, N.A., 2011 WL 1870279, at

*1 (N.D. Tex. May 16, 2011), aff'd, 459 F. App'x 424 (5th Cir. 2012) (“The

motion is not properly considered a motion for “new trial” because there was no

trial.”); Artemis Seafood, Inc. v. Butcher's Choice, Inc. ., 1999 WL 1032798

(N.D.Tex. Nov.10, 1999) (Although denominated as a motion for “new trial,” it

obviously is not such a motion. As Rule 59(a) makes clear, a motion for new

trial is appropriate when the case has been tried to a jury or to the court.

The court disposed of this case on motion for summary judgment.”); Jones v. W.

Geophysical Co. of Am., 669 F.2d 280, 282 (5th Cir. 1982) (“Although the parties

and the district court all proceeded to deal with plaintiff's motion as one for

“new trial,” neither the parties nor the court identified whether it was a

motion under Fed.R.Civ.P. 59(a)(2) or Fed.R.Civ.P. 59(e). As this was a motion

2002). Rule 59(e) serves “the narrow purpose of allowing a party

to correct manifest errors of law or fact or to present newly

discovered evidence.” Basinkeeper v. Bostick, 663 F. App'x 291,

294 (5th Cir. 2016) (quoting Waltman v. Int'l Paper Co., 875 F.2d

468, 473 (5th Cir. 1989)). Amending a judgment is appropriate under

Rule 59(e): “(1) where there has been an intervening change in the

controlling law; (2) where the movant presents newly discovered

evidence that was previously unavailable; or (3) to correct a

manifest error of law or fact.” Berezowsky v. Rendon Ojeda, 652 F.

App'x 249, 251 (5th Cir. 2016) (quoting Demahy v. Schwarz Pharma,

Inc., 702 F.3d 177, 182 (5th Cir. 2012)). Because Rule 59(e) has

a “narrow purpose,” the Fifth Circuit has “observed that

[r]econsideration of a judgment after its entry is an extraordinary

remedy that should be used sparingly.” Id. (quoting Templet v.

HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004)). Thus, “a motion

for reconsideration is not the proper vehicle for rehashing

evidence, legal theories, or arguments that could have been offered

or raised before the entry of judgment.” Id. (quoting Templet, 367

F.3d at 479).

Reconsideration of the previous judgment is not appropriate

because plaintiff’s newly offered legal arguments could have been

made at the time of his original filing. The entirety of

essentially for reexamination of an order finally disposing of an action prior

to trial, we presume that it was a motion for reconsideration under Fed.R.Civ.P.

59(e).”)

plaintiff’s motion consists of providing caselaw to remedy the

deficiency of his previous responses to defendants’ motions for

summary judgment, which failed to identify existing precedent that

clearly established his allegedly violated rights. Plaintiff seeks

to now show the Court that a body of relevant caselaw exists which

places the lawfulness of defendant officer’s conduct beyond

debate, as required by the Supreme Court when a plaintiff seeks to

defeat a qualified immunity defense. See D.C. v. Wesby, 138 S. Ct.

577, 581 (2018).

However, none of the cases plaintiff cites to in support of

his motion were published after this Court’s judgment and should

have been included in plaintiff’s original opposition. When

defendants invoked the qualified immunity defense in their motions

for summary judgment, the burden shifted to the plaintiff to prove

that the defense was not available to them by showing that they

had violated a right that was “clearly established” at the time of

the defendant officials’ conduct. See Vann v. City of Southaven,

884 F.3d 307, 309 (5th Cir. 2018) (quoting Hanks v. Rogers, 853

F.3d 738, 744 (5th Cir. 2017)). Supreme Court precedent required

plaintiff to establish this element by showing that a body of

relevant case law and existing precedent placed the lawfulness of

defendants’ actions beyond debate.2 See D.C. v. Wesby, 138 S. Ct.

2 The Supreme Court also held that there may be a rare obvious case where the

unlawfulness of the officer’s conduct is sufficiently clear even though existing

precedent does not address similar circumstances. D.C. v. Wesby, 138 S. Ct.

577, 581 (2018). Summary judgment was granted in this case because

plaintiff failed to show that he had a clearly established right

supported by relevant case law in his response. A Rule 59(e) motion

does not provide plaintiff a second chance to oppose defendants’

motions for summary judgment by making such a showing. Plaintiff

does not identify an intervening change in controlling law, newly

discovered evidence that was previously unavailable, or a manifest

error. Rather, plaintiff submits legal arguments for consideration

that were available to him at the time of his original filing, but

which he failed to make. However, “a motion for reconsideration is

not the proper vehicle for rehashing evidence, legal theories, or

arguments that could have been offered or raised before the entry

of judgment.” Id. (quoting Templet, 367 F.3d at 479). Therefore,

plaintiff has not identified a proper basis upon which to alter or

amend this Court’s judgement.

New Orleans, Louisiana, this 26th day of June, 2019.

___________________________________

SENIOR UNITED STATES DISTRICT JUDGE

577, 581 (2018). The Court held in the Order and Reasons granting defendants’

motion for summary judgment that we did not consider this case to be that “rare

obvious case” and plaintiff does not appear to seek reconsideration of that

finding in the instant motion.