United States District Court, S.D. Texas, Houston Division
MEMORANDUM, RECOMMENDATION, AND ORDER
before the court are Plaintiffs' Motion for Summary
Judgment (Doc. 91), Defendant's Motion for Summary
Judgment and Amended Motion for Summary Judgment (Docs. 92,
97), Defendant's Motion to Strike Plaintiffs' Summary
Judgment Evidence (Doc. 103), Plaintiffs' Motion for
Partial Summary Judgment (Doc. 114), and Plaintiffs'
Objections to Defendant's Exhibits (Doc. 165). The court
has considered the motions, the responses, all other relevant
filings, and the applicable law.
reasons set forth below, the court RECOMMENDS that
Defendant's motion to strike be GRANTED IN PART AND
DENIED IN PART, Plaintiffs' objections be OVERRULED,
Plaintiffs' motion for summary judgment be DENIED,
Plaintiffs' motion for partial summary judgment be DENIED
AS MOOT, and Defendant's motion for summary judgment be
GRANTED IN PART AND DENIED IN PART AS MOOT. Because the court
recommends dismissal of all of Plaintiffs' federal
claims, the court declines to exercise supplemental
jurisdiction over Plaintiffs' remaining state law claims
and RECOMMENDS that this action be DISMISSED.
filed this action on March 11, 2015, against Defendant J.D.
Oliver (“Oliver”), a former professor at Prairie
View A&M University (“Prairie View”),
alleging civil rights violations under 42 U.S.C. § 1983
(“Section 1983”) and several related state law
Lisa Mims (“Mims”) was a student at Prairie View
and registered for Oliver's computer education course
during the Fall 2013 semester. Mims averred that she visited
Oliver's office several times, and, on one occasion,
Oliver propositioned Mims for sex at a hotel. Mims became
alarmed at Oliver's statement and stood up to leave his
office. Oliver blocked Mims from leaving his
office, forced her up against his body, and grabbed her
breast. Out of concern that he would try to rape
her, Mims averred, Mims pulled away and left his
denied under oath that Mims came to his office and that he
grabbed her breast. Oliver testified that he loaned Mims a
textbook after Mims explained to him that she was not
performing well in his class because she had a job at night
in addition to school responsibilities. Oliver also told
Mims that she could work with his teaching assistant but
denied that he offered her help on the final exam or with her
averred that Oliver obtained her cell phone number from an
unknown source. During his deposition, Oliver was
questioned about phone calls made to Mims from his cell
phone. When asked to confirm that the number from which the
calls were placed was his cell phone number, Oliver stated
“It looks like-if I can remember correctly, my old
number that was stolen.” The phone records showed
frequent calls from late November 2013 through December 14,
2013, to Mims' cell phone from Oliver's former
number. Oliver denied that he called Mims and
stated that he did not know why the phone records reflected
that he called Mims on those dates. Mims averred that Oliver
offered her, in person and over the phone, an “A”
in his class without taking the final or turning in missing
assignments if she agreed to have sex with him and threatened
to fail her if she did not have sex with him.
Saturday, December 14, 2013, Oliver testified, he needed to
grade papers to meet the end of the semester
deadline. Because his wife had scheduled the
carpets to be cleaned, Oliver planned to go to Prairie View
to work. On his way to campus, Oliver stopped at
an IHOP to eat breakfast. After eating, Oliver began
feeling faint so he decided to check into a nearby hotel
instead of going to campus to work. Mims called Oliver to
return the textbook she had borrowed. Oliver told
her that he would not be working on campus that
day. Mims averred that, although she agreed
to meet Oliver at the hotel, she did not intend to have sex
with him, but instead her intention was to confront him about
his inappropriate behavior towards her in the presence of
witnesses. Mims and Jackson averred that they
wanted proof that Oliver had asked Mims to go to the hotel to
have sex with him. Oliver testified that he intermittently
graded and took naps that day until Mims arrived at the hotel
with Jackson and two other men around 4:30 in the
Jackson, and two other men went to the hotel
room.When Mims knocked on the door, Oliver
stopped grading, looked out through the eyehole in the door,
and saw Mims and the three men.Oliver testified that he
opened the door for them and they “threw [him] on the
floor.” As one of the men held Oliver on the
floor, they demanded that Oliver give them $9, 000 and then
took his credit cards, driver's license, and thirteen
dollars in cash from his wallet. They recorded the
incident and threatened Oliver that they would disclose prior
recordings they had of his conversations with Mims if he did
not pay them. Jackson played one of the recordings for
Oliver. They also looked through Oliver's
computer and took “pictures of [him] with
condoms.” Mims and Jackson averred that they did
not rob Oliver at the hotel.
testified that after Plaintiffs and the two men left, Oliver
went to the front desk and called the police. Oliver
subsequently filed criminal charges against
testified that, after the incident took place at the hotel
room, he and Mims went to Oliver's home and put notes in
his mailbox and on his car stating, “J.D. Oliver
contact 281-782-1711 or this information will be shared!
-thank you.” Jackson testified that they went to
Oliver's home because Mims had not received a grade for
the class. Additionally, Oliver testified that he
received an email from Mims on December 15, 2013, informing
him that, because Oliver had not contacted them as
instructed, they would release the recordings and a video to
his wife, his place of work, and local radio
was later terminated by Prairie View as a result of Mims'
complaint of the incident. Oliver subsequently filed two
lawsuits, one against Plaintiffs and another against Prairie
View.Both lawsuits were dismissed on
filed their complaint on March 11, 2015, alleging the
following federal constitutional causes of action brought
under Section 1983: equal protection, First Amendment
retaliation, and unreasonable seizure under Section
1983. Plaintiffs also brought state law causes
of action: Texas constitutional claims, official oppression,
unlawful restraint, assault, slander per se, and malicious
prosecution. Plaintiffs filed a first amended
complaint with leave of court on January 15, 2016, stating
that they made changes that included: (1) adding a claim for
abuse of process; (2) dropping the official oppression cause
of action; and (3) substituting a federal malicious
prosecution claim in lieu of a state law malicious
prosecution claim. Additionally, Mims recharacterized her
equal protection claim as equal protection and substantive
due process claims. Plaintiffs later supplemented their
first amended complaint to add a claim of invasion of
privacy, which is the subject of the pending motion for
partial summary judgment.
deadline for dispositive motions was extended to November 28,
2016, after Oliver failed to timely produce certain discovery
items and failed to provide potential dates for his and his
wife's depositions. On November 28, 2016, Plaintiffs
filed their motion for summary judgment. On November
29, 2016, one day past the deadline for dispositive motions,
Oliver filed his motion for summary judgment. Oliver asked
the court for leave to file his motion for summary judgment
one day late, which the court granted.However,
without leave of court, on December 15, 2016, Oliver filed a
“corrected” motion for summary judgment along
with some, but not all, of the exhibits referenced in the
motion. Oliver subsequently filed a motion to
strike Plaintiffs' summary judgment evidence and a
response to Plaintiffs' motion.
filed a response to Oliver's corrected motion for summary
judgment on December 20, 2016. Plaintiffs, in their response,
objected to the court's consideration of Oliver's
incomplete and/or missing exhibits. On June 6, 2017, the
court ordered Oliver to produce a complete set of exhibits to
the court by June 9, 2017. Oliver submitted the missing
exhibits on June 8, 2017. Plaintiffs object to the
court's consideration of these exhibits.
Objections and Preliminary Issues
lodges a number of objections to Plaintiffs' summary
judgment evidence in his motion to strike. Additionally, in
his response to Plaintiffs' motion for summary judgment,
Oliver asks the court to strike statements he characterizes
as conclusory contained in the requests for admission and the
first amended complaint. Plaintiffs object to Oliver's
evidence and presentation of the facts and contend that the
complaint and requests for admission are deemed admitted due
to Oliver's late-filing of certain documents.
must support its factual positions on summary judgment by
citing to particular evidence in the record. Fed.R.Civ.P.
56(c)(1). Federal Rule of Civil Procedure 56(c)(2) allows a
movant to object to exhibits that “cannot be presented
in a form that would be admissible in evidence” under
the Federal Rules of Evidence.
relevant evidence is admissible. Fed.R.Evid. 402. Relevant
evidence has a “tendency to make a fact more or less
probable than it would be without the evidence” and
relates to a fact “of consequence in determining the
action.” Fed.R.Evid. 401. Affidavits supporting summary
judgment “must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the
affiant or declarant is competent to testify on the matters
stated.” Fed.R.Civ.P. 56(c)(4). The court may strike an
affidavit that violates this rule. Akin v. Q-L
Investments, Inc., 959 F.2d 521, 530 (5th
Cir. 1992). Conclusory allegations, unsubstantiated
assertions, improbable inferences, and speculation are not
competent evidence. Roach v. Allstate Indem. Co.,
476 F. App'x 778, 780 (5th Cir.
2012)(unpublished)(citing S.E.C. v. Recile, 10 F.3d
1093, 1097 (5th Cir. 1993)).
is not admissible evidence. Fed.R.Evid. 802. Hearsay is an
out-of-court statement that is offered for “the truth
of the matter asserted in the statement.” Fed.R.Evid.
801. Statements offered against an opposing party made
“by the party in an individual or representative
capacity” are not hearsay.” Fed.R.Evid.
801(d)(2). The Federal Rules of Evidence also list exceptions
to the rule against hearsay. Fed.R.Evid. 803-804, 807.
purposes of authentication, Federal Rule of Evidence 901(a)
requires “evidence sufficient to support a finding that
the item is what the proponent claims it is.”
Circumstantial evidence, such as the document itself and the
circumstances surrounding its discovery, is sufficient for
authentication. In re McLain, 516 F.3d 301, 308
(5th Cir. 2008). The Fifth Circuit “does not
require conclusive proof of authenticity before allowing the
admission of disputed evidence . . . It merely requires some
evidence which is sufficient to support a finding that the
evidence in question is what its proponent claims it to
be.” Id. (quoting United States v.
Arce, 997 F.2d 1123, 1128 (5th Cir. 1993),
and prior case law).
challenges Plaintiffs' reliance on: (1) unauthenticated
exhibits; (2) the complaints in other related cases; and (3)
Emails and Requests for Admission
contends that Plaintiffs' requests for admission, served
on Oliver on March 21, 2016, are inadmissible hearsay because
the document was not accompanied by a supporting affidavit.
This defect has been corrected by the affidavit submitted by
Plaintiffs' counsel. Oliver also argues that the requests
for admission are inadmissible because his counsel was not
served with the request for admission on March 21, 2016.
Oliver has not provided evidence supporting this argument.
Oliver's objections to Exhibit 1 are
contends that an email sent to Plaintiffs' counsel
attaching Oliver's responses to Plaintiffs' requests
for admission is improper because no affidavit was attached
to authenticate this email. As with Exhibit 1, Plaintiffs
have attached an affidavit from Plaintiffs' attorney
authenticating this exhibit. Therefore, Oliver's
objection is OVERRULED.
objects to Exhibit 4, a series of emails between
Plaintiffs' attorney and Oliver's attorneys on the
grounds that it has not been authenticated, that it is
conclusory and self-serving, and that it omits some emails in
the string. Plaintiffs corrected any authentication issue by
their attorney's affidavit attached to their response.
Reviewing Exhibit 4, the emails are not conclusory or
self-serving, as the exhibit merely shows email
correspondence between the attorneys concerning the requests
for admission. Additionally, Oliver has not provided any
evidence to show that this email chain is incomplete or that
an omitted email is relevant to any dispute in this case.
Therefore, Oliver's objections are
have attached two original complaints and two amended
complaints from related cases, one in which Oliver sued
Plaintiffs and another in which Oliver sued Prairie View and
others. Oliver objects to Plaintiffs' reliance on the
original complaint from each of these cases, arguing that
they are not competent summary judgment evidence because they
are unverified complaints. Plaintiffs contend that these
complaints are judicial admissions that are binding on
admissions are “factual assertions in pleadings . . .
[that are] conclusively binding on the party who made
them.” Blankenship, 653 F. App'x 330, 335
(5th Cir. 2016)(quoting White v.
ARCO/Polymers, Inc., 720 F.2d 1391, 1396 (5th
Cir. 1983)). Judicial admissions withdraw facts from
contention. Id. (quoting Martinez v. Bally's
La., Inc., 244 F.3d 474, 476 (5th Cir.
2001)). However, “judicial admissions are not
conclusive and binding in a separate case from the one in
which the admissions were made.” Universal Am.
Barge Corp. v. J-Chem, Inc., 946 F.2d 1131, 1142
(5th Cir. 1991).
pleadings in other cases are not judicial admissions in this
case. See id. Moreover, Oliver specifically
challenges the inclusion of the original complaints, not the
first amended complaints. The Fifth Circuit has held that
pleadings that have been withdrawn may not be considered as
judicial admissions. Blankenship, 653 F. App'x
to the extent that they are inconsistent with positions
Oliver has taken in this suit, these pleadings may be
submitted as admissions against interest and they can be used
for impeachment purposes. See In re Zonagen, Inc. Secs.
Litig., 322 F.Supp.2d 764, 783 (S.D. Tex.
2003)(“Statements a party makes in pleadings in one
case that are inconsistent with the positions a party takes
in another case may be admissible as admissions against
interest and for impeachment.”). Therefore,
Oliver's objection is SUSTAINED IN PART AND
OVERRULED IN PART.
objects to the court's consideration of affidavits from
Mims and Jackson in support of their motion for summary
judgment. Oliver generally contends that Plaintiffs'
affidavits contain inadmissible hearsay, legal conclusions,
bare allegations of fact, and conclusory and non-specific
inadmissible evidence. Oliver also argues that both Mims'
and Jackson's affidavits contradict testimony they gave
at an administrative hearing at Prairie View. Oliver's
general objections to Mims' and Jackson's affidavits
specifically challenges four of Mims' statements in her
affidavit as inadmissible hearsay. First, Oliver contends
that the assertions, “I did not give Defendant Oliver
my cell phone number and I do not know how he got it. I did
not give Defendant Oliver permission to call me,
” are hearsay. The court
OVERRULES Oliver's objection as these
are not out-of-court statements offered for the truth of the
matter asserted but statements concerning her actions or
objects to the following statements as hearsay: “I
agreed to meet Defendant Oliver at a hotel (as described in
the Complaint) but not for sex. I went to tell him that I was
upset with how he sexually harassed me and that he should not
treat any person that way. I told him these things at the
hotel room.” The first two sentences are not hearsay
as they are statements concerning her actions or non-actions.
However, Mims' assertion of what she told Oliver at the
hotel room is clearly hearsay. In their response, Plaintiffs
have not provided any other reason this statement was
offered, instead arguing that it is not a statement.
Oliver's hearsay objections to this paragraph are
SUSTAINED IN PART AND OVERRULED IN PART.
Oliver challenges the following two paragraphs in Mims'
affidavit as inadmissible hearsay: (1) “I also went to
get proof that he arranged for us to meet in a hotel for sex.
I was afraid that no one would believe my side of the story
if I had no proof;” (2) “I did not rob
Defendant Oliver on Dec. 14, 2013, or on any other
day.” Oliver also challenges the same two
statements in Jackson's affidavit. Neither of
these averments contains an out-of-court statement. Instead,
they describe Mims' and Jackson's actions in
conjunction with the facts involved in this case.
objections are OVERRULED.
also contends that Plaintiffs have not affirmatively shown
that they are competent to testify about what is contained in
the affidavits. However, both Mims' and Jackson's
affidavits are based on their personal knowledge of the facts
in this case. Therefore, Oliver's objection is
Jackson's affidavit, Oliver complains that some of the
statements in the affidavit are inadmissible hearsay. Oliver
asserts that the following paragraph is inadmissible hearsay,
“During the Fall 2013 semester, my girlfriend Lisa Mims
told me several instances of Defendant Professor J.D. Oliver
['s] sexually harassing her as described in the First
Amended Complaint.”Jackson's assertion that
Mims told him about Oliver's sexual harassment is hearsay
as proof of the fact that Oliver harassed Mims. Plaintiffs
contend that this statement falls under Federal Rule of
Evidence 803(3), the state of mind exception to hearsay. The
state of mind exception, in relevant part, is “[a]
statement of the declarant's then-existing state of mind
(such as motive, intent, or plan) or emotional, sensory, or
physical conditions (such as mental feeling, pain, or bodily
health), but not including a statement of memory or belief to
prove the fact remembered or believed . . . .”
Fed.R.Evid. 803(3). However, there is no assertion contained
in that paragraph about anyone's state of mind.
objection is therefore SUSTAINED.
also argues the following statement is hearsay: “I
played one such recording that Defendant Oliver
heard.” The court finds that this is not hearsay
because there is no out-of-court statement; rather, Jackson
is merely stating that he played a phone recording in
Oliver's presence. Oliver's objection is
argues that paragraph four wherein Jackson states, “I
went to meet Defendant Oliver at the hotel room (also
described in the Complaint) to tell him that I was upset with
how he sexually harassed my girlfriend, and that Lisa Mims
and I had recorded several conversations between him and Lisa
Mims in case he decided to fail Lisa Mims for not having sex
with him. I told him these things at the hotel
room” is inadmissible hearsay. Plaintiffs
argue in their response that this is not a statement or that
it falls under the state of mind exception. It is clearly a
statement, as Jackson states that he told Oliver these
assertions at the hotel rooms, and if Plaintiffs are offering
these statements to prove that Oliver harassed Mims, it is
hearsay. The court disagrees with Plaintiffs'
characterization of this as falling under the state of mind
exception as it does not relate to Jackson's state of
mind at the time of making the statements. Oliver's
hearsay objection is therefore SUSTAINED.
Oliver's Request to Strike
response, Oliver asks the court to strike conclusory
statements contained in the requests for admission and the
first amended complaint. The only arguments offered in
support of this request are that: (1) his answer was timely
because it relates back to the date that the court granted
Plaintiffs' motion for reconsideration to supplement the
amended complaint; and (2) “[t]here is no evidence that
Oliver grabbed Lisa Mims' breast or grabbed Joshua
court does not find that Oliver's arguments warrant
striking statements contained Plaintiffs' amended
complaint. Plaintiffs filed their amended complaint and the
supplement to the amended complaint with leave of court. As
to the requests for admission, Federal Rule of Civil
Procedure 36 allows “litigants to request admissions as
to a broad range of matters, including ultimate facts, as
well as applications of law to fact.” In re
Carney, 258 F.3d 415, 419 (5th Cir. 2001);
Fed.R.Civ.P. 36(a)(1)(A). The court finds that
Plaintiffs' requests for admission were proper and did
not ask Oliver to admit conclusions of law. See In re
Carney, 258 F.3d at 419. Therefore, Oliver's request
to strike conclusory statements in Plaintiffs' first
amended complaint and requests for admission is
their response to Oliver's motion for summary judgment
and their separately-filed objections, Plaintiffs object to
Oliver's summary judgment evidence on several bases.
Plaintiffs complain that Oliver failed to file his exhibits
in a timely fashion, which prejudiced Plaintiffs in
developing their response to Oliver's motion for summary
judgment. As the court granted Oliver leave to file the
summary judgment evidence late, this objection is OVERRULED.
Plaintiffs also object to an email from “Ex
international” to Oliver dated December 15, 2013, as
unauthenticated, modified, and irrelevant. Although the court
shares Plaintiffs' concerns, it did not rely on the
exhibit in reaching its decision herein. This objection is
OVERRULED AS MOOT.
Plaintiffs object to a notation among the exhibits indicating
that Oliver intended to hand deliver to the court an
unredacted version of one exhibit and a video exhibit because
Plaintiffs were not served these supplemental exhibits.
Because the court did not rely on these exhibits, the court
OVERRULES AS MOOT this objection as well.
as pointed out by Plaintiffs, the court agrees that
Oliver's motion discusses irrelevant facts and facts not
supported by summary judgment evidence and that some of
Oliver's exhibits are unauthenticated. However, the court
has not relied on these unsubstantiated assertions or
unauthenticated exhibits in its statement of the facts;
rather, the court relied on the affidavits of Plaintiffs, the
deposition of Oliver, and the deposition of Jackson in
recounting the factual background of this case. Therefore,
Plaintiffs' objections are OVERRULED AS MOOT.
to the extent that Plaintiffs state that Oliver's
testimony is uncorroborated and that he has no factual
support for his statements, Plaintiffs' objection is
OVERRULED. Plaintiffs themselves submitted his deposition as
part of their summary judgment evidence, Oliver's
deposition was taken under oath, and it is clearly competent
summary judgment evidence.
contend that because Oliver did not file an answer to the
first amended complaint, the court must find that
Plaintiffs' allegations in the first amended complaint
have been established. Plaintiffs also assert that their
requests for admission should be deemed admitted because
Oliver did not respond within the time allowed by the
argues that the requests for admission should not deemed as
admitted because Oliver's counsel was not served with the
requests on March 21, 2016, as claimed. Alternatively, Oliver
argues that if the requested facts are deemed admitted,
Plaintiffs still fall short of meeting the elements of their
claims and he moves to strike any conclusory statements in
the requests and in the amended complaint.
Plaintiffs' Requests for Admission
Federal Rule of Civil Procedure 36, a party may request
admission from the other side as to matters relating to the
case, including facts or how the law applies to the facts.
Fed.R.Civ.P. 36(a); In re Carney, 258 F.3d at
418-19. A party served with requests for admission has thirty
days to respond or they are deemed admitted. Fed.R.Civ.P.
36(a)(3). The parties may stipulate to a different time frame
under a Federal Rule of Civil Procedure 29 agreement, or the
court may order a different due date. Fed.R.Civ.P. 29;
Fed.R.Civ.P. 36(a)(3). Federal Rule of Civil Procedure 36(b)
states that “[a] matter admitted under this rule is
conclusively established unless the court, on motion, permits
the admission to be withdrawn or amended.” Fed.R.Civ.P.
case has been rife with discovery disputes. Oliver contends
that the parties agreed to extend his response period until
May 9, 2016, a fact that Plaintiffs dispute. Oliver argues
that his attorney attempted to fax the responses to the
requests for admission in a timely fashion and that
Plaintiffs' counsel interrupted the fax transmission so
the response could not be sent. The lack of a timely response
on this and other discovery requests prompted a motion to
compel by Plaintiffs' counsel.
2, 2016, the court ordered Oliver to mail the missing
responses to the requests for admission and other discovery
documents that day and, when that order was not fully
honored, again ordered that the discovery be resent on June
9, 2016. Plaintiff received Oliver's response to the
requests for admission on June 9, 2016.
argue that in the face of an untimely response, Oliver should
have moved for permission to file the responses to the
requests for admission out of time. However, under Federal
Rule of Civil Procedure 36(a)(3), the court has the power to
order a longer period of time for a party to respond to
requests for admission. The court's intervention in this
dispute gave Oliver extra time to turn over the requests for
admission to Plaintiffs. The court declines to deem
Plaintiffs' requests for admission as admitted and
declines to grant Plaintiffs' motion for summary judgment
on this basis.
time that Plaintiffs filed their motion for summary judgment,
Oliver had not filed an answer to their first amended
complaint, which made significant modifications to the
factual allegations compared to the original complaint.
Oliver later filed a general denial, which was stricken by
the court, and Oliver was ordered to file a new answer within
two weeks that complied with the Federal Rules of Civil
Procedure. To date, Oliver has not complied with
the court's order.
Rule of Civil Procedure 37(b)(2)(A) lists appropriate
sanctions for the failure of a party to obey a discovery
order, which includes rendering default judgment against
disobedient party. The court “has broad discretion
under Rule 37(b) to fashion remedies suited to the
misconduct.” Smith & Fuller, P.A. v. Cooper
Tire & Rubber Co., 685 F.3d ...