Justiniano v. Walker

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

DAMARIS JUSTINIANO, as the

Personal Representative of the

Estate of WILFREDO JUSTINIANO,

JR., No. 15-cv-11587-DLC

Plaintiff,

v.

STEPHEN WALKER and TIMOTHY P.

ALBEN,

Defendants.

ORDER ON PLAINTIFF’S MOTION TO VACATE JUDGMENT

CABELL, U.S.M.J.

I. INTRODUCTION

This court previously entered judgment in favor of defendant

Trooper Stephen Walker after granting his motion for summary

judgment. (D. 90. 92). The plaintiff moves to vacate the judgment

on the ground of newly discovered evidence. (D. 97). For the

reasons explained below, the motion is denied.

II. RELEVANT BACKGROUND

Following the unfortunate fatal shooting of Wilfredo

Justiniano by defendant Massachusetts State Trooper Stephen Walker

during a roadside incident, Damaris Justiniano as personal

representative of his estate brought suit against Trooper Walker,

Walker’s superior Colonel Timothy Alben and, in a separate state

court action, the Massachusetts State Police. As it concerns

Trooper Walker and this matter, the plaintiff’s principal claim

was that Trooper Walker violated Justiniano’s Fourth Amendment

right to be free from the use of excessive force.

Walker moved for summary judgment on the ground that he acted

reasonably and would regardless be entitled to qualified immunity.

In considering the motion, the court relied upon evidence from

civilian observers, but also relied upon uncorroborated evidence

from Trooper Walker that Justiniano wielded a pen as a weapon and

made threatening statements to Trooper Walker.1 The court found

based on the entire record that the defendant acted reasonably

under the circumstances and therefore did not use excessive force.

The court found further that Trooper Walker would enjoy qualified

immunity even if his actions were excessive because it would not

have been clear to a reasonable officer in his position that his

actions were unlawful. The court accordingly granted the

defendant’s motion for summary judgment.

Justiniano timely appealed to the First Circuit Court of

Appeals. Well into the appellate process, however, after briefing

and oral argument, the plaintiff moved pursuant to Fed. R. Civ. P.

1 Although no witness testified to seeing Justiniano wielding a pen, a pen was

found at the scene. Also, while civilian witnesses saw Justiniano and Walker

talking, none of them could hear what was being said.

2

60 to have this court set aside its judgment on the ground of newly

discovered evidence, namely evidence from Trooper Walker’s

personnel file tending to suggest that he has on prior occasions

been untruthful when faced with discipline procedures arising from

incidents of misconduct. (D. 97).

This court denied the motion on the ground that the court

lacked subject matter jurisdiction to act where the case was

pending on appeal. (D. 100). The plaintiff appealed that ruling

as well and the Court of Appeals in response vacated this court’s

denial, and remanded the matter with instructions to construe the

plaintiff’s motion as one under Fed. R. Civ. P. 62.1, which inter

alia would permit the court to deny the motion or alternatively

indicate whether it would grant the motion. (D. 106).

With respect to the substance of the pending motion, the

plaintiff asserts that she discovered new material evidence in

connection with a separate but factually related matter pending in

the Massachusetts state superior court. See Justiniano v.

Department of State Police, No. 1684CV00399 (Mass. Super. Ct.

Suffolk Co. filed Feb. 5, 2016).2 (For reference, the present

federal action was commenced almost a year earlier than the state

court action, on April 14, 2015). Of relevance here, and as the

2 The plaintiff also filed a medical malpractice action against the physicians

who treated Justiniano after he was shot. This case was eventually

consolidated with the State Police case.

3

parties acknowledged at the hearing on the present motion, the

parties had agreed that four or five depositions, including that

of Trooper Walker, would be cross-noticed. Trooper Walker was

deposed on December 14, 2017.

The plaintiff contends specifically that on June 25, 2019 she

received through discovery in the state court action portions of

Trooper Walker’s personnel file. She asserts that the file

contains evidence indicating that the defendant was accused of

some misconduct on two prior occasions and in each case offered

explanations which his superiors or investigating officer did not

believe. The plaintiff also discovered that although Trooper

Walker testified in his deposition for this case that he filed a

use of force report in connection with Justiniano’s shooting, the

State Police informed the plaintiff through the state court action

that it could not find any such report, suggesting, so the

plaintiff contends, that Trooper Walker made a false statement and

that no report was in fact ever filed. (D. 105-8).

The plaintiff argues that the evidence shows that Trooper

Walker has a history of fabricating stories when he knows his

conduct is under investigation. She argues that his credibility

in the present case is suspect in light of this evidence, and that

this court therefore can no longer credit his uncorroborated

statements about what transpired between him and Justiniano. The

4

plaintiff argues that without the force of Trooper Walker’s

statements, genuine issues of fact exist as to whether he acted

reasonably when he used pepper spray and/or shot Justiniano.3

Consequently, the court’s order of summary judgment should now be

vacated.

Walker demurs and advances three reasons why the plaintiff’s

motion should be denied. First, the plaintiff cannot show under

Rule 60(b)(2) that she could not have discovered the evidence

earlier by exercising due diligence. Second, even if she could,

the evidence in the record supports the court’s decision that

Trooper Walker acted reasonably even if his uncorroborated

statements are excised from the calculus. Third, Trooper Walker

would still be entitled to qualified immunity in any event. As

3 It bears noting that the parties have for apparently different reasons

shifted the focus of this case from the reasonableness of the actual shooting

to the reasonableness of the first use of pepper spray. Previously, the

plaintiff’s principal claim was that Trooper Walker used excessive force when

he shot Justiniano. That was clearly the thrust of the complaint, although

the plaintiff notes that the complaint did in at least in part reference the

use of pepper spray as improper. The shooting was also clearly the focal

point of interest throughout the summary judgment process. Indeed, no party

argued that the first use of pepper spray should factor meaningfully into the

court’s analysis and no party thereafter challenged the court’s reasoning in

its summary judgment decision as improperly focusing on the propriety of the

shooting rather than the first use of pepper spray. On appeal and in the

present litigation, however, the plaintiff has without much fanfare made the

first use of pepper spray the critical moment, and the defendant has

responded in kind, again for apparently different reasons. As this court

noted at the hearing, though, it is not clear whether this shift in the

context of the appeal and present motion is permissible, impermissible or of

no consequence, particularly where the plaintiff acknowledged at the hearing

that he was not purporting to change his theory of liability on the basis of

the new evidence. Because the court decides ultimately that the new evidence

would not in any event alter the court’s prior decision, it is not necessary

to consider this issue further.

5

discussed below, the court agrees that the plaintiff has not shown

satisfactorily that she could not have through the exercise of

diligence discovered the evidence sooner than she did. Even

assuming she could, the court finds that it would conclude that

qualified immunity applies even if it incorporated the force of

the new evidence by ignoring the defendant’s uncorroborated

statements.

III. LEGAL FRAMEWORK

Federal Rule of Civil Procedure 60(b)(2) entitles a party to

relief from summary judgment based on newly discovered evidence if

(1) the evidence has been discovered since the judgment; (2)

the evidence could not by due diligence have been discovered

earlier by the movant; (3) the evidence is not merely cumulative

or impeaching; and (4) the evidence is of such a nature that it

would probably change the result were a new trial to be granted.

Mitchell v. United States, 141 F.3d 8, 18 (1st Cir. 1998). The

movant bears the burden of satisfying each of these criteria. U.S.

Steel v. M. DeMatteo Constr. Co., 315 F.3d 43, 52 (1st Cir. 2002).

A party who argues that newly discovered evidence warrants

relief from a judgment must, at the very least, offer a convincing

explanation as to why the party could not have proffered the

crucial evidence at an earlier stage of the proceedings. Fed. R.

Civ. P. 60(b)(2); see Karak v. Bursaw Oil Corp., 288 F.3d 15 (1st

6

Cir. 2002). “In order for evidence to be newly discovered, the

party seeking a new trial must be unaware of the existence of

the evidence before or during the trial.” Kettenbach v. Demoulas,

901 F. Supp. 486, 494 (D. Mass. 1995).

The parties here dispute whether the plaintiff has satisfied

the second (due diligence) and fourth (materiality) criteria. The

plaintiff acknowledged at the hearing that she was aware of Trooper

Walker’s personnel file long before the defendant moved for summary

judgment but had no basis to be aware that the file might contain

evidence that Walker was untruthful when faced with discipline, or

that he made misrepresentations in his deposition.

The defendant counters that the plaintiff knew about the

personnel file from the outset of the case. The defendant notes

that the plaintiff sought discovery of the file no later than

February 2017 (about a year before the defendant moved for summary

judgment on February 15, 2018 (D. 58)), and did not follow up with

a more narrow request or a motion to compel when the defendant

objected to producing or agreeing to have the State Police produce

his entire personnel file, and also did not ask this court to delay

ruling on the defendant’s motion for summary judgment.

As discussed below, the plaintiff is not entitled to relief

under Rule 60(b)(2) because she has not shown that the evidence

concerning Trooper Walker’s alleged misconduct and false

7

statements could not have been discovered sooner than it was. Even

assuming arguendo that the plaintiff met the rule’s requirements,

the new evidence does not alter this court’s conclusion that

Trooper Walker would nonetheless be entitled to qualified immunity

even assuming his conduct were found to violate Justiniano’s

rights.

IV. DISCUSSION

A. Due Diligence

A brief summary of the discovery in the federal and state

court actions as it relates primarily to the issue of Trooper

Walker’s personnel file helps to place the due diligence issue in

context.

In May 2016 the plaintiff made over 100 document requests in

the state court action. These requests presumably included one

for Trooper Walker’s personnel file because the State Police

subsequently informed the plaintiff that it needed Trooper

Walker’s consent to produce the file, which he declined to give.

Several months later, in February 2017, the plaintiff served

written discovery requests on Trooper Walker in this matter and

among other things requested the defendant’s entire personnel

file. Trooper Walker objected on the grounds of overbreadth and

relevance where his career had spanned 29 years.

8

Several more months later, in September 2017, the plaintiff

followed up on her state court action document request and informed

the State Police that she would submit narrower requests. However,

the State Police claim that the plaintiff’s new requests, sent in

November 2017, essentially duplicated her May 2016 requests. (D.

110-4).

On November 17, 2017, the parties conducted a “Rule 9”

discovery conference in the state court action. Trooper Walker’s

counsel attended the conference as well. The defendant’s counsel

continued to object to producing the defendant’s entire personnel

file. Counsel moreover noted that the State Police would be the

better source to seek the records from because they maintained

more thorough records than the defendant did. However, the parties

did agree that the State Police would produce the defendant’s

disciplinary history pursuant to a federal subpoena.

Between mid-November and mid-December 2017, the state police

produced Trooper Walker’s disciplinary history in the form of a

summary of all discipline taken against him. However, the summary

did not include any details on the investigation of disciplinary

matters.

On December 8, 2017, Trooper Walker formally responded to the

plaintiff’s request for documents in the present federal action;

9

he objected to producing his entire personnel file on the grounds

of overbreadth, vagueness, and relevance.

On December 14, 2017, the plaintiff deposed Trooper Walker.

On January 15, 2018, and after three extensions, fact

discovery closed in the present federal action.

On February 15, 2018, Trooper Walker moved for summary

judgment. Oral argument took place on May 1, 2018.

Following the hearing, the plaintiff on May 7, 2018

contacted Trooper Walker’s counsel to ask anew if he would

consider producing the defendant’s personnel file, presumably in

connection with the state court action. Similarly, on May 15,

2018, the plaintiff contacted counsel for the State Police and

asked again for Trooper Walker’s personnel file.

Between May 9 and August 28, 2018, the parties filed post-

hearing memoranda in this matter; none of it implicated any

discovery concerning Trooper Walker’s personnel file. (D. 85-

89).

On September 30, 2018, the court granted the defendant’s

motion for summary judgment. (D. 90, 92). On October 15, 2018,

the plaintiff filed a notice of appeal. (D. 93).

Some six months or so later, in May 2019, the plaintiff

moved in the state court action to compel the production of

Trooper Walker’s personnel file. In June 2019 the state court

10

granted the motion and compelled the production of any use of

force reports filed by Trooper Walker as well as his performance

reviews and disciplinary incident reports from 2010-2013. On

June 25, 2019, the State Police produced the documents.

Against this backdrop, it is clear that the plaintiff

expended some effort to obtain the defendant’s disciplinary

records. The court finds that that effort, however, was less

than diligent for purposes of the federal action.

Among other things, the plaintiff had by February 2017

requested Trooper Walker’s personnel file in both the state and

federal matters and been told that Trooper Walker objected to

its disclosure. Several months went by before the plaintiff in

September 2017 resumed her efforts to obtain the discovery by

agreeing to submit narrower requests in the state court matter,

something she then apparently failed to do.

In late November the parties apparently agreed that the

State Police would produce the defendant’s disciplinary history

pursuant to a federal subpoena, and records were produced around

mid-December 2017, but those records consisted of a summary of

disciplinary actions taken against Trooper Walker but did not

include any details on the investigation of disciplinary

matters.

11

Thereafter, over the course of the next several months, the

plaintiff deposed the defendant (December 14, 2017), the

defendant moved for summary judgment (February 15, 2018), and

the parties argued summary judgment (May 1, 2018). During that

span, however, there is no indication that the plaintiff ever

resumed efforts to obtain further discovery, although it was

clear to all that the personnel file issue was unresolved.

Indeed, the plaintiff one week after argument on the

summary judgment motion (May 7, 2018) contacted the defendant’s

counsel to ask anew if he would consider producing the

defendant’s personnel file, presumably in connection with the

state court action. The plaintiff also contacted the State

Police a week after that (May 15, 2018) to ask for the same

thing. While one might look at this as reflecting a continued

if not sporadic effort to obtain the discovery, the plaintiff

then did nothing further for essentially the next year; it was

not until May 2019 that the plaintiff took actual steps to

obtain the discovery through a motion to compel in the state

court matter.

In sum, the plaintiff knew as late as December 2017 that

she did not have all of the discovery regarding Trooper Walker’s

disciplinary history. The plaintiff was in a position then to

seek relief from this court to compel production of the

12

discovery but the plaintiff went on to depose Trooper Walker

without resolving this issue, and then allowed fact discovery to

end (January 15, 2018) without taking action. Instead, the

plaintiff renewed her requests for the discovery only several

months later, in May 2018, after oral argument on the summary

judgment motion. Even then, though, the plaintiff did not

follow up on her requests or take any further action to obtain

the discovery, in either state or federal court, until she filed

the state court motion to compel a year later in May 2019.

When asked by this court why no steps were taken sooner in

the federal action to compel discovery or delay summary judgment,

counsel responded that he “didn’t want to throw spaghetti at the

wall,” and that the defendant’s counsel kept representing that he

would look into what records the defendant was willing to produce.

These reasons help to understand why the plaintiff failed to take

more concerted action but they do not justify that inaction where

it is now evident that counsel could have taken concrete steps in

2017 (if not 2016) to obtain the discovery. See Lyles v. Medtronic

Sofamor Danek, USA, Inc., 871 F.3d 305, 316 (5th Cir. 2017) (due

diligence not shown where plaintiff was aware that certain devices

had been used in his surgery but defendant had not produced

documentation on those devices and plaintiff never followed up

discovery request); Zurich North America v. Matrix Service, Inc.,

13

426 F.3d 1281, 1291-92 (10th Cir. 2005) (while a party’s withholding

of documents may have violated the spirit of Rule 26, where the

party seeking discovery was aware documents had not been produced

but never sought to compel these documents or postpone

determination of summary judgment, diligence was not shown).

In sum, the court finds that the plaintiff has failed to

meet her burden under Fed. R. Civ. P. 60(b)(2) to show that the

evidence could not by due diligence have been discovered earlier

than it was. The plaintiff’s motion to vacate therefore fails.

U.S. Steel v. M. DeMatteo Constr. Co., 315 F.3d 43, 52 (1st Cir.

2002).

B. Qualified Immunity

Even assuming arguendo that the plaintiff could show she

exercised reasonable diligence, the plaintiff would still have to

show that the new evidence would probably change the outcome of

the summary judgment motion. The court finds in that regard that

even if the new evidence were incorporated and Trooper Walker’s

uncorroborated statements were removed from consideration, he

would still be entitled to qualified immunity.

Qualified immunity shelters government officials from civil

liability “‘insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.’” McKenny v. Mangino, 873

14

F.3d 75, 80 (1st Cir. 2017)(quoting Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)).

Courts generally analyze qualified immunity claims under a

two-step approach that first requires the plaintiff to identify

“‘controlling authority’ or a ‘consensus of cases of persuasive

authority’” that communicates “a clear signal to a reasonable

official that certain conduct falls short of the constitutional

norm.” Alfano v. Lynch, 847 F.3d 71, 76 (1st Cir. 2017)

(quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)). Second, the

court must determine “whether an objectively reasonable official

in the defendant's position would have known that his conduct

violated that rule of law.” Id.

Courts have discretion however to bypass the first step of

this analysis and proceed directly to the second. See Penate v.

Hanchett, No. 19-1187, 2019 WL 6798883, at *5 (1st Cir. Dec. 13,

2019). The court does so here.

While qualified immunity cannot protect Trooper Walker from

liability if, on an objective basis, no reasonably competent

officer would have acted as he did, “if officers of reasonable

competence could disagree on [the lawfulness of the alleged

conduct], immunity should be recognized.” Malley v. Briggs, 475

U.S. 335, 341 (1986). Thus, the defense of qualified immunity

15

“provides ample protection to all but the plainly incompetent or

those who knowingly violate the law.” Id. at 349.

Here, assuming that Trooper Walker’s use of pepper spray or

his firearm constituted unreasonable force, and that the right to

be free from such force was clearly established in June 2013, the

relevant inquiry for qualified immunity purposes is whether a

reasonable, similarly situated officer would have understood

Trooper Walker’s conduct to violate Justiniano’s rights. Viewing

the facts in a light most favorable to the plaintiff, the court

finds that a reasonable officer would not have clearly understood

Walker’s conduct to be unreasonable. The uncontested facts (minus

Trooper Walker’s testimony) establish that:

1. Justiniano was acting erratically before Trooper Walker

arrived at the scene. Karen Kyriakides had seen him pull

off Route 28 during the morning rush hour after witnessing

him driving erratically, and when she stopped to see if he

was OK, he emerged from his car and spoke unintelligibly

to her;

2. Kyriakides found Justiniano confused and distraught, and

when she called 911, she asked the dispatcher “to send

somebody out because I was scared for the man and anybody

else driving by.” She locked her car doors as she waited

because she “was a little scared because [she] didn’t know

what this man was capable of.”

3. While she was waiting, Kyriakides saw Justiniano exit his

vehicle again, pace around his car, and throw his arms in

the air while tilting his head back. At one point, she

feared he would walk into the road.

4. After Trooper Walker arrived, Kyriakides and two other

witnesses saw Trooper Walker using hand gestures consistent

16

with trying to calm Justiniano down, indicating that

Justiniano remained or at a minimum appeared agitated and

distraught. None of the witnesses saw Justiniano complying

with Trooper Walker’s gestures.

5. One witness, Jo Ann Silva Winbush, saw Trooper Walker

pepper spray Justiniano twice. She reported that the first

pepper spray happened after Trooper Walker had backed into

Route 28 right in front of her vehicle to maintain distance

from Justiniano.

6. Kyriakides, Winbush, and another witness all said

Justiniano was lunging at Trooper Walker and approaching

him aggressively with clenched fists just before Walker

shot Justiniano.

Based on the foregoing, an objectively reasonable officer in

Trooper Walker’s position would not have understood that emitting

a burst of pepper spray to retard Justinano’s movements violated

his rights. On the contrary, the undisputed facts demonstrate

that Justiniano appeared agitated and distraught when Trooper

Walker arrived, Trooper Walker tried to calm him down by holding

up his hands, Justinano did not comply, and Trooper Walker used

the pepper spray only after he was forced to back up into Route

28.4

To be sure, the plaintiff cites to Gray v. Cummings, 917 F.3d

1 (1st Cir. 2019) for the proposition that a subject’s mental

4 As noted above, the plaintiff focuses principally on the first use of pepper

spray and thus does not address whether, assuming Trooper Walker’s testimony

is ignored, he would or would not be entitled to qualified immunity with

respect to the shooting. To the extent it matters, this court finds that

Trooper Walker would still be entitled to qualified immunity with respect to

the shooting where there is no dispute that Justiniano aggressively lunged at

him with clenched fists after the second use of the pepper spray.

17

illness must be taken into account when determining the amount of

force that is reasonable. However, the court in Gray actually

found that a reasonable officer in May 2013 could have determined

that a single use of a taser at its lowest setting to quell a non-

violent, mentally ill subject who was resisting arrest did not

violate the Fourth Amendment. Id. at 12. Similarly, this court

would find that a reasonable officer in Trooper Walker’s position

in June 2013 could have determined that using a single burst of

pepper spray on a non-compliant, sometimes pacing, distraught

individual adjacent to a busy highway did not violate the Fourth

Amendment.

V. CONCLUSION

For the foregoing reasons, the Plaintiff’s Motion to Vacate

Judgment (D. 97) is DENIED.

/s/ Donald L. Cabell

DONALD L. CABELL, U.S.M.J.

DATED: December 24, 2019

18