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Mims v. Oliver

United States District Court, S.D. Texas, Houston Division

July 18, 2017

J.D. OLIVER, Defendant.


         Pending before the court[1] 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.

         For the 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.

         I. Case Background

         Plaintiffs 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 claims.

         A. Factual Background

         Plaintiff Lisa Mims (“Mims”) was a student at Prairie View and registered for Oliver's computer education course during the Fall 2013 semester.[2] Mims averred that she visited Oliver's office several times, and, on one occasion, Oliver propositioned Mims for sex at a hotel.[3] Mims became alarmed at Oliver's statement and stood up to leave his office.[4] Oliver blocked Mims from leaving his office, forced her up against his body, and grabbed her breast.[5] Out of concern that he would try to rape her, Mims averred, Mims pulled away and left his office.[6]

         Oliver denied under oath that Mims came to his office and that he grabbed her breast.[7] 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.[8] 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 missing assignments.[9]

         Mims averred that Oliver obtained her cell phone number from an unknown source.[10] 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.”[11] The phone records showed frequent calls from late November 2013 through December 14, 2013, to Mims' cell phone from Oliver's former number.[12] 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.[13] 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.[14]

         On Saturday, December 14, 2013, Oliver testified, he needed to grade papers to meet the end of the semester deadline.[15] Because his wife had scheduled the carpets to be cleaned, Oliver planned to go to Prairie View to work.[16] On his way to campus, Oliver stopped at an IHOP to eat breakfast.[17] After eating, Oliver began feeling faint so he decided to check into a nearby hotel instead of going to campus to work.[18] Mims called Oliver to return the textbook she had borrowed.[19] Oliver told her that he would not be working on campus that day.[20] 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.[21] Mims and Jackson averred that they wanted proof that Oliver had asked Mims to go to the hotel to have sex with him.[22] 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 afternoon.[23]

         Mims, Jackson, and two other men[24] went to the hotel room.[25]When Mims knocked on the door, Oliver stopped grading, looked out through the eyehole in the door, and saw Mims and the three men.[26]Oliver testified that he opened the door for them and they “threw [him] on the floor.”[27] 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.[28] 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.[29] Jackson played one of the recordings for Oliver.[30] They also looked through Oliver's computer and took “pictures of [him] with condoms.”[31] Mims and Jackson averred that they did not rob Oliver at the hotel.[32]

         Oliver testified that after Plaintiffs and the two men left, Oliver went to the front desk and called the police.[33] Oliver subsequently filed criminal charges against Plaintiffs.[34]

         Jackson 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.”[35] Jackson testified that they went to Oliver's home because Mims had not received a grade for the class.[36] 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 stations.[37]

         Oliver was later terminated by Prairie View as a result of Mims' complaint of the incident.[38] Oliver subsequently filed two lawsuits, one against Plaintiffs and another against Prairie View.[39]Both lawsuits were dismissed on jurisdictional grounds.[40]

         B. Procedural Background

         Plaintiffs 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.[41] Plaintiffs also brought state law causes of action: Texas constitutional claims, official oppression, unlawful restraint, assault, slander per se, and malicious prosecution.[42] 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.[43] Additionally, Mims recharacterized her equal protection claim as equal protection and substantive due process claims.[44] 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.[45]

         The 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.[46] On November 28, 2016, Plaintiffs filed their motion for summary judgment.[47] On November 29, 2016, one day past the deadline for dispositive motions, Oliver filed his motion for summary judgment.[48] Oliver asked the court for leave to file his motion for summary judgment one day late, which the court granted.[49]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.[50] Oliver subsequently filed a motion to strike Plaintiffs' summary judgment evidence and a response to Plaintiffs' motion.[51]

         Plaintiffs filed a response to Oliver's corrected motion for summary judgment on December 20, 2016.[52] Plaintiffs, in their response, objected to the court's consideration of Oliver's incomplete and/or missing exhibits.[53] On June 6, 2017, the court ordered Oliver to produce a complete set of exhibits to the court by June 9, 2017.[54] Oliver submitted the missing exhibits on June 8, 2017.[55] Plaintiffs object to the court's consideration of these exhibits.[56]

         II. Objections and Preliminary Issues

          Oliver 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.

         A. Legal Standard

         A party 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.

         Only 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)).

         Hearsay 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.

         For 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).

         B. Oliver's Objections

         Oliver challenges Plaintiffs' reliance on: (1) unauthenticated exhibits; (2) the complaints in other related cases; and (3) Plaintiffs' affidavits.

         1. Emails and Requests for Admission

         Oliver 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 OVERRULED.

         Oliver 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.

         Oliver 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 OVERRULED.

         2. Complaints/Court Documents

         Plaintiffs 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 Oliver.

         Judicial 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).

         Oliver's 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 at 335-36.

         However, 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.[57]

         3. Plaintiffs' Affidavits

         Oliver 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 are OVERRULED.

         Oliver 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, ”[58] 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 non-actions.

         Oliver 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.”[59] 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.

         Finally, 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;”[60] (2) “I did not rob Defendant Oliver on Dec. 14, 2013, or on any other day.”[61] Oliver also challenges the same two statements in Jackson's affidavit.[62] 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.

         Oliver's objections are OVERRULED.

         Oliver 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 OVERRULED.

         As to 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.”[63]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.

         Oliver's objection is therefore SUSTAINED.

         Oliver also argues the following statement is hearsay: “I played one such recording that Defendant Oliver heard.”[64] 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 OVERRULED.

         Oliver 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”[65] 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.

         C. Oliver's Request to Strike

          In his 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 Jackson anywhere.”[66]

         The 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 DENIED.

         D. Plaintiffs' Objections

         In 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.

         Finally, 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.

         Additionally, 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.

         Additionally, 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.

         E. Oliver's Admissions

         Plaintiffs 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 applicable rule.

         Oliver 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.

         1. Plaintiffs' Requests for Admission

         Under 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. 36(b).

         This 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.[67]

         On June 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.

         Plaintiffs 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.

         2. Oliver's Answer

         At the 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.[68] To date, Oliver has not complied with the court's order.

         Federal 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 ...

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