discussing Fed. R. Civ. P. 60(a)
How later courts described this case
- discussing Fed. R. Civ. P. 60(a)
- rejecting interlocutory appeal inasmuch as “defendants’ briefing before us plainly disputes both the facts identified by the magistrate judge as well as the inferences proffered by the plaintiff and deemed reasonable by the magistrate judge”
- “‘a district court’s pretrial rejection of a 9 qualified immunity defense is not immediately appealable to the extent that it turns on an issue of fact’”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ROSEMARY JENKINS,
Plaintiff,
v. CIVIL ACTION NO.
15-10003-MBB
CITY OF TAUNTON, CHIEF EDWARD
WALSH, MARK BRADY, ROBERT
KRAMER, MATTHEW SKWARTO,
RALPH SCHLAGETER, JEFFREY
MARTIN, and FRED BOLTON,
Defendants.
MEMORANDUM AND ORDER RE:
DEFENDANTS’ MOTION TO CORRECT THE SUMMARY JUDGMENT RECORD
(DOCKET ENTRY # 76); DEFENDANTS’ SUPPLEMENTAL MOTION TO
CORRECT THE SUMMARY JUDGMENT RECORD (DOCKET ENTRY # 81)
January 8, 2018
BOWLER, U.S.M.J.
Pending before this court are two motions to correct the
summary judgment record filed by defendants City of Taunton,
Chief Edward Walsh (“Walsh”), Mark Brady (“Brady”), Robert Kramer
(“Kramer”), Matthew Skwarto (“Skwarto”), Ralph Schlageter
(“Schlageter”), Jeffrey Martin (“Martin”), and Fred Bolton
(“Bolton”) (collectively “defendants”).1 (Docket Entry ## 76,
81). Plaintiff Rosemary Jenkins (“plaintiff”) opposes the
requested corrections. (Docket Entry # 82).
BACKGROUND
On September 29, 2017, this court allowed in part and denied
in part defendants’ summary judgment motion. (Docket Entry #
1 As a result of court rulings and a stipulation, there are
no remaining claims against the City of Taunton and Walsh.
73). On October 27, 2017, defendants filed a notice of appeal of
the denial of qualified immunity. (Docket Entry # 77).
Brady, Schlageter, Martin, and Bolton, all police officers
with the Taunton Police Department (“TPD”), as well as Kramer, a
detective with the TPD, and Skwarto, a detective sergeant with
the TPD, (“the responding officers”) sought qualified immunity
for the 42 U.S.C. § 1983 (“section 1983”) and Massachusetts Civil
Rights Act (“MCRA”)2 claims grounded upon an entry into
plaintiff’s apartment with an arrest warrant for her son.3
(Docket Entry # 59, pp. 4-6). They argued that, “Prior to
entering Plaintiff’s apartment, [they] had a reasonable (although
mistaken) belief that” Reginald Jenkins, Sr. (“Reginald”),
plaintiff’s son and a fleeing suspect, “lived in apartment #3.”
(Docket Entry # 59). They further asserted that, because of
their “knowledge from past encounters that [Reginald’s] mother
and his minor children lived in apartment #3,” the responding
officers were not “plainly incompetent for believing RJS lived
there” as well. (Docket Entry # 59).
2 The MCRA is codified at Masschusetts General Laws chapter
12, section 11I.
3 As to Kramer, defendants moved for summary judgment only
on the claims based on the “entry into and search of Plaintiff’s
apartment” at 112 High Street in Taunton, Massachusetts. (Docket
Entry # 58). The motion did not seek summary judgment on an
excessive force claim against Kramer under section 1983 or a
number of other claims against him. Absent a settlement, these
claims will proceed to a trial.
2
The summary judgment opinion framed the qualified immunity
inquiry as “whether ‘the police “reasonably believed” prior to
entry that [the suspect] (1) resided at the apartment and (2)
would be present.’” (Docket Entry # 73, p. 43) (quoting United
States v. Graham, 553 F.3d 6, 12 (1st Cir. 2009), and citing
United States v. Werra, 638 F.3d 326, 327 (1st Cir. 2011)). The
denial of immunity turned upon an issue of fact, namely, the
reasonable belief of the responding officers that, prior to the
entry into the apartment, Reginald resided in apartment three.
(Docket Entry # 73, pp. 37-44)); see United States v. Graham, 553
F.3d at 12. “Drawing reasonable inferences in plaintiff’s
favor,” this court set out the facts that best comported with the
summary judgment standard. (Docket Entry # 73, p. 40) (quoting
Morelli v. Webster, 552 F.3d 12, 19 (1st Cir. 2009)).
The undisputed facts in the LR. 56.1 statements established
that: the building at 112 High Street had four apartments;
apartment three was the only residence on the third floor;
plaintiff resided in apartment three with her grandchildren; and
TPD police were aware that plaintiff lived at the multi-unit
building with her grandchildren because she “had called TPD on
multiple occasions for assistance” with her grandchildren.
(Docket Entry # 73, pp. 4-6) (Docket Entry # 63, ¶¶ 2, 3, 11, 12)
3
(Docket Entry # 69, ¶¶ 2, 3, 11, 12).4 Drawing reasonable
inferences in plaintiff’s favor, this court found that “members
of TPD were aware that plaintiff . . . lived in apartment three
on the third floor.” (Docket Entry # 73, p. 6). As also
explained in the opinion, TPD records at the relevant time
identified Reginald’s address as apartment four or simply as 112
High Street. (Docket Entry # 73, pp. 26-27). TPD records did
not designate Reginald’s address as apartment three at 112 High
Street, i.e., plaintiff’s apartment. (Docket Entry # 73, p. 26).
Dispatch transmissions included the victim’s mother’s statement
that Reginald was inside “his apartment over there.” (Docket
Entry # 73, pp. 9, 44). After surveying the clearly established
law in the context of these and other facts in the record
construed in plaintiff’s favor, this court found that such law
“would have given a reasonable police officer clear notice that
he lacked a reasonable belief that Reginald resided in apartment
three at 112 High Street.” (Docket Entry # 73, p. 44).
Defendants seek to change the factual record to reflect that
plaintiff actually resided in apartment four because plaintiff
misstated the apartment number at her deposition as apartment
4 Defendants’ LR. 56.1 statement deemed the above
statements of fact undisputed only “for purposes of [the summary
judgment] motion.” (Docket Entry # 69, ¶¶ 2, 3). The parties
cited plaintiff’s deposition testimony for the agreed-upon fact
that plaintiff resided in apartment three.
4
three.5 (Docket Entry ## 76, 81, 85). Plaintiff implicitly
disagrees and submits that she “testified truthfully and to the
best of her memory” at her deposition regarding apartment three.6
(Docket Entry # 82). To support the request to change the
summary judgment record, defendants now provide documents that
existed at the time they sought summary judgment that show
plaintiff lived in apartment four at the relevant time, i.e., the
same apartment number reflected in various TPD records prior to
the August 2013 entry into plaintiff’s apartment.7 (Docket Entry
## 76-1 to 76-7, 81-1, 81-2). A number of these documents
further identify apartment four as located on the third floor.
(Docket Entry ## 76-1 to 76-4, 81-2). Once changed, defendants
plan to file a motion to reconsider this court’s denial of
summary judgment on all claims related to the entry into
plaintiff’s apartment. (Docket Entry # 76, p. 5) (Docket Entry #
5 See footnote four.
6 In an October 10, 2017 email, after defendants’ counsel
provided plaintiff’s counsel with documents evidencing apartment
four as plaintiff’s address, plaintiff’s counsel expressed a
willingness to file a stipulation that plaintiff’s address is
apartment four. After speaking to plaintiff a second time and
rereading the deposition transcript, plaintiff’s counsel decided
he could not in good faith agree to a stipulation. (Docket Entry
# 76-9).
7 Defendants also provide an affidavit by Kramer that he:
visited the property on October 11, 2017, i.e., after this court
issued the summary judgment opinion; viewed the entrance door of
each apartment residence; and determined that apartment four was
“[t]he only residence located on the third floor.” (Docket Entry
# 76-8).
5
81, p. 2).
The summary judgment record which defendants seek to correct
by changing apartment three to apartment four includes: (1)
defendants’ LR. 56.1 statement that, “On August 2, 2013,
Plaintiff resided in apartment #3 of 112 High Street in Taunton,
Massachusetts”; (2) defendants’ LR. 56.1 statement that,
“Apartment #3 is the only residence located on the third floor”;
(3) plaintiff’s LR. 56.1 statement containing these same facts;
and (4) defendants’ response to plaintiff’s LR. 56.1 statement
admitting these facts as undisputed for purposes of summary
judgment.8 (Docket Entry # 60, ¶¶ 2, 6) (Docket Entry # 63, ¶¶
2, 3) (Docket Entry # 69, ¶¶ 2, 3). To support the agreed-upon
fact that plaintiff lived in apartment three, the LR. 56.1
statements cited plaintiff’s deposition which, in pertinent part,
reads as follows:
Q. Where did you live before that?
A. 112 High Street.
Q. Was there an apartment number?
A. Apartment 3 . . ..
Q. Can you kind of describe the -- maybe I should start
with, how many floors is 112 High Street?
A. First floor, second floor, third floor.
Q. Three floors?
A. Yeah.
Q. Which floor is your apartment, Apartment 3 on?
A. Third floor.
Q. Which floor is Apartment No. 1?
8 Defendants also ask this court to order plaintiff to file
a corrected version of her LR. 56.1 statement of material facts
by substituting apartment four for all references to apartment
three. (Docket Entry # 81).
6
A. First floor.
Q. What about Apartment No. 2?
A. Second floor.
Q. What about Apartment No. 4?
A. Rear.
Q. Which floor is that?
A. Apartment 4.
Q. Which floor is Apartment No. 4 on?
A. Rear first floor. It’s the first floor Apartment 4.
(Docket Entry # 60-2, pp. 18, 47-48).
In addition to the foregoing, defendants seek to correct the
references to apartment three in an affidavit they filed in which
Skwarto, the officer who purportedly “led the entry into the
apartment” (Docket Entry # 59, p. 4), swore to the following:
21. At the time I entered apartment #3, I believed that
Reginald Jenkins, Sr. was inside and that the apartment was
his residence. I also believed that he was likely armed and
dangerous and attempting to avoid capture.
22. Upon entering apartment #3, I observed minor children
present inside the apartment.
23. Officers did not locate Reginald Jenkins, Sr. inside
apartment #3.
(Docket Entry # 60-13). Once altered, defendants plan to
file a corrected affidavit by Skwarto substituting apartment four
for apartment three in order to support the yet-to-be-filed
motion to reconsider the denial of summary judgment.9 (Docket
Entry # 76, p. 5) (Docket Entry # 81, p. 2). Complicating this
proposed course of action is the notice of appeal filed one day
after defendants filed the initial motion to correct. (Docket
9 The dispositive motion deadline in this three-year-old
case is January 9, 2017.
7
Entry # 77).
Plaintiff argues that defendants did not make a mistake at
the time they filed their LR. 56.1 undisputed statement of
material fact. Rather, they intended to present plaintiff’s
address as an undisputed fact. Only after this court issued the
summary judgment decision “did defendants decide they did not
like this fact,” according to plaintiff. (Docket Entry # 82).
Plaintiff accurately points out that the motion to correct cited
no legal authority to support a correction in light of the
appeal. In response, defendants assert that Fed. R. Civ. P. 62.1
(“Rule 62.1”) provides the requisite authority. As stated in the
reply brief, defendants:
request that this Court issue an indicative ruling under
Rule 62.1(a)(3) stating that it would grant the Defendants’
Motion to Correct the Summary Judgment Record if the Court
of Appeals remands for that purpose, or in the alternative,
that the Motion to Correct raises a substantial issue with
respect to the summary judgment motion which is on appeal.
(Docket Entry # 85).
DISCUSSION
In light of the pending appeal, defendants seek an
indicative ruling under Rule 62.1(a)(3) that this court would
grant the motions to correct in the event of a remand for that
purpose or find that the motions raise a substantial issue.
Plaintiff asks this court deny the motions. (Docket Entry # 82).
Rule 62.1 states that, “If a timely motion is made for
relief that the court lacks authority to grant because” of a
8
pending appeal, “the court may: (1) defer considering the
motion; (2) deny the motion; or (3) state either that it would
grant the motion if the court of appeals remands for that purpose
or that the motion raises a substantial issue.” Fed. R. Civ. P.
62.1; see Fed R. App. P. 12.1(a). Rule 62.1(a)(3) allows “a
party to request an ‘indicative ruling’ from the district court
when that court lacks jurisdiction in the matter based on a
pending appeal.” Mendia v. Garcia, 874 F.3d 1118, 1120 (9th Cir.
2017). As stated in the rule, when the court lacks the authority
because of a pending appeal, the court may also “deny the
motion.” Fed. R. Civ. P. 62.1(a)(2); Owens v. Republic of Sudan,
174 F. Supp. 3d 242, 291 (D.D.C. 2016), aff’d, 864 F.3d 751 (D.C.
Cir. 2017) (citing Rule 62.1(a)(2) as “authorizing the denial of
relief when an appeal is pending”).
Ordinarily, the filing of an interlocutory appeal “confers
jurisdiction on the court of appeals and divests the district
court of control over those aspects of the case involved in the
appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56,
58 (1982) (per curium). Entitlement to an interlocutory appeal
of a denial of qualified immunity turns upon whether the denial
implicates a reviewable question of law or an unreviewable
question of fact. See Morse v. Cloutier, 869 F.3d 16, 22 (1st
Cir. 2017); Carter v. State of Rhode Island, 68 F.3d 9, 12 (1st
Cir. 1995) (“‘a district court’s pretrial rejection of a
9
qualified immunity defense is not immediately appealable to the
extent that it turns on an issue of fact’”) (quoting Johnson v.
Jones, 515 U.S. 304, (1995)) (ellipses omitted); see also
McKenney v. Mangino, 873 F.3d 75, 80, 84 (1st Cir. 2017); Cady v.
Walsh, 753 F.3d 348, 360 (1st Cir. 2014) (rejecting interlocutory
appeal inasmuch as “defendants’ briefing before us plainly
disputes both the facts identified by the magistrate judge as
well as the inferences proffered by the plaintiff and deemed
reasonable by the magistrate judge”). Only a patently frivolous
notice of appeal fails to “divest the district court of
jurisdiction in the first instance.” Rivera-Torres v. Ortiz
Velez, 341 F.3d 86, 96 (1st Cir. 2003).
Rule 62.1 “codifies the procedure most courts used to
address Rule 60(b) motions to vacate final judgments which had
already been appealed.” Ret. Bd. of Policemen’s Annuity and Ben.
Fund of City of Chicago v. Bank of New York Mellon, 297 F.R.D.
218, 221 (S.D.N.Y. 2013); Fed. R. Civ. P. 62.1 Advisory Committee
Notes, 2009 Adoption. The rule, however, extends to “any motion
that the district court cannot grant because of a pending
appeal.” Fed. R. Civ. P. 62.1 Advisory Committee Note, 2009
Adoption; accord Ret. Bd. of Policemen’s Annuity and Ben. Fund of
City of Chicago v. Bank of New York Mellon, 297 F.R.D. at 221.
The motions to correct therefore fall within the reach of Rule
62.1(a)(3).
10
Indicative rulings under Rule 62.1(a)(3) serve a purpose of
obviating the necessity for an appeal. Export-Import Bank of
Republic of China v. C. Bank of Liberia, 1:15-CV-09565 (ALC),
2017 WL 6398726, at *2 (S.D.N.Y. Dec. 13, 2017). “For example, a
meritorious Rule 60(b) motion to vacate a judgment because of
newly discovered evidence makes an appeal of that judgment
unnecessary.” Ret. Bd. of Policemen’s Annuity and Ben. Fund of
City of Chicago v. Bank of New York Mellon, 297 F.R.D. at 221
(emphasis added).
Here, defendants wish to use the rule to correct a material
mistake they may have made in accepting plaintiff’s deposition
testimony at face value. They had the ability to obtain and file
the evidence they currently proffer as part of the summary
judgment record. In this context, providing relief under Rule
62.1(a)(3) with an indicative ruling would countenance
reconsideration of rulings based on newly filed evidence
available at the time a prior summary judgment motion was filed.
Cf. Fed. R. Civ. P. 60(b)(2). In addition, plaintiff’s
deposition testimony that she resided in apartment three, the
only apartment on the third floor, was not an oversight but,
rather, more than likely her testimony to the best of her memory.
Cf. Fed. R. Civ. P. 60(a); Bowen Inv., Inc. v. Carneiro Donuts,
Inc., 490 F.3d 27, 29 (1st Cir. 2007) (discussing Fed. R. Civ. P.
60(a)). Defendants could have presented the evidence that
11
plaintiff resided in apartment four as part of the summary
judgment motion. Principles of finality therefore counsel
against allowing the motions. Allowing the motions would also
lead to a second round of summary judgment motions and may
further delay the resolution of this three-year-old case, which
will likely involve a trial of the excessive force claim against
Kramer in any event.
Finally, although mindful that qualified immunity is an
immunity from suit as well as monetary damages, the denial of
qualified immunity at the summary judgment stage does not
foreclose the responding officers from raising the defense in a
post-trial motion based on the facts in evidence at trial. See
Rivera-Torres v. Ortiz Velez, 341 F.3d at 93; accord McKenney v.
Mangino, 873 F.3d at 85. Indeed, “facts elicited at trial are
often probative of the defendant’s entitlement to qualified
immunity.” Rivera-Torres v. Ortiz Velez, 341 F.3d at 93. Thus,
the responding officers retain the ability to move for judgment
as a matter of law before the case is submitted to the jury and
after a verdict based on qualified immunity in order to avoid any
monetary damages. See id. “‘[O]nce trial has been had, the
availability of official immunity’” is ascertained based on “‘the
trial record, not the pleadings nor the summary judgment
record.’” Id. at 92–93 (quoting 15A Wright, Miller & Cooper,
Federal Practice and Procedure § 3914.10).
12
CONCLUSION
In accordance with the foregoing discussion and, as
requested by plaintiff, the motions to correct (Docket Entry ##
76, 81) are DENIED.
/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge
13