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Flores v. Harris

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

July 17, 2019

THOMAS LOYD HARRIS, et al., Defendants.



         In July 2015, an off-duty Houston Police Officer, Thomas Harris, shot Helder Flores at an apartment complex in Houston. Flores sued Officer Harris, another officer on the scene that night, Officer Anton Mawhood, and the City of Houston.[1] (Docket Entry Nos. 1-1, 6, 78). The officers and the City separately moved for summary judgment, and Flores filed identical responses to both motions. (See Docket Entry No. 112, 113). The court granted summary judgment for the City and the Officer Mawhood but denied summary judgment as to Flores's excessive-force claims against Harris. (Docket Entry No. 129). Flores now moves for reconsideration of the court's March 2019 Memorandum and Order granting summary judgment to the City. (Docket Entry No. 150). The City responded and filed objections to Flores's exhibits, and Flores replied. (Docket Entry Nos. 156, 161, 162).

         Based on the motion, response, and reply; the applicable law; and the relevant record, the Court denies Flores's motion for reconsideration. (Docket Entry No. 150). The reasons for this ruling are detailed below.

         I. Background

         Flores alleged that in July 2015, Officer Harris shot him in the back at La Estancia Apartments in Houston. (Docket Entry No. 78). Flores sued Officers Harris and Mawhood and the City of Houston, bringing claims under 42 U.S.C § 1983 for alleged violations of the Fourth and Fourteenth Amendments. He alleged that the City violated his constitutional rights by: failing to adequately investigate the shooting, punish Officers Harris or Mawhood, or train and discipline its officers who use deadly force; discriminating against him based on his race; denying him timely medical care; and ratifying Harris's alleged misconduct. (Id. at ¶¶ 318-69).

         In January 2019, the City and the officers separately moved for summary judgment. (Docket Entry Nos. 100, 102). Flores responded to both motions and filed supporting exhibits, including Exhibit L, which was a compilation of 23 administrative reports by the Houston Police Department Internal Affairs Division. (See Docket Entry Nos. 112-14, 114-11, 115-10). The responses were identical and did not address the City's arguments for summary judgment. (See Docket Entry No. 112, 113). Because Flores did not file Exhibit L under seal as required under the parties' protective order, the court struck the exhibit but noted that “[t]here is no basis to believe that the analysis or outcome would change” if it were considered. (Docket Entry No. 129 at 17).

         In March 2019, the court granted the City's summary judgment motion and granted in part and denied in part the officers' summary judgment motion, leaving only Harris as a defendant. (Id.). The court concluded that Flores had not offered or pointed to evidence showing a municipal policy, practice, or custom that could make the City liable under § 1983 for the shooting.[2] (Id. at 45-62).

         In June 2019, Flores moved under Federal Rules of Civil Procedure 54(b), 59(e), and 60(b)(6) for reconsideration of the court's March 2019 Memorandum and Order granting the City's summary judgment motion. (Docket Entry No. 150). Flores argues that new evidence shows that the court should have denied the motion. The City argues that the motion for reconsideration fails because Flores did not timely file it; has not offered or pointed to newly discovered summary judgment evidence showing genuine factual disputes material to the issue of municipal liability; and has shown neither manifest injustice nor extraordinary circumstances justifying reconsideration. (Docket Entry No. 155 at 7).

         II. The Legal Standard

         The Federal Rules of Civil Procedure do not formally recognize a motion to reconsider. See St. Paul Mercury Ins. Co. v. Fair Grounds Corp., 123 F.3d 336, 339 (5th Cir. 1997) (“[T]he Federal Rules of Civil Procedure do not recognize a general motion for reconsideration.”). Motions to reconsider that seek to amend a final judgment are treated as motions to alter or amend a judgment under Federal Rule of Civil Procedure 59(e), or motions for relief from judgment under Rule 60(b), depending on when the motion is filed. Demahy v. Schwarz Pharm. Inc., No. 11- 31073, 2012 WL 5261492, at *2 n.2 (5th Cir. Oct. 25, 2012) (citing Tex. A & M Research Found. v. Magna Transp., Inc., 338 F.3d 394, 400 (5th Cir. 2003)). A motion for reconsideration is considered under Rule 59(e) if it is filed within 28 days of the court's ruling, and under Rule 60(b) if it is filed after that. Demahy, 2012 WL 5261492, at *2 n.2 (citing Tex. A&M, 338 F.3d at 400). However, Rule 54(b) applies to motions to reconsider interlocutory orders that do not dispose of every claim or resolve the rights of all parties to the litigation. Fed.R.Civ.P. 54(b); Austin v. Kroger Texas, L.P., 864 F.3d 326, 336 (5th Cir. 2017). This motion is considered under Rule 54(b).

         Under Rule 54(b), the court may “reconsider, rescind or modify an interlocutory order for a cause seen by [the court] to be sufficient.” Stoffels ex rel. SBC Telephone Concession Plan v. SBC Commc'ns, Inc., 677 F.3d 720, 726 (5th Cir. 2012). In reviewing a Rule 54(b) motion, “the trial court is free to reconsider and reverse its decision for any reason it deems sufficient, even in the absence of new evidence or an intervening change in or clarification of the substantive law.” Austin, 864 F.3d at 336 (quoting Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 185 (5th Cir. 1990), abrogated on other grounds, Little v. Liquid Air Corp., 37 F.3d 1069, 1075 n.14 (5th Cir. 1994) (en banc)). “To obtain relief under Rule 59(e), the movant must (1) show that its motion is necessary to correct a manifest error of law or fact, (2) present newly discovered or previously unavailable evidence, (3) show that its motion is necessary to prevent manifest injustice, or (4) show that its motion is justified by an intervening change in the controlling law.” Arceneaux v. State Farm Fire & Cas. Co., No. 07-7701, 2008 WL 2067044, at *1 (E.D. La. May 14, 2008).

         Although Rule 54(b) motions to reconsider interlocutory orders are considered more leniently than motions filed under the more exacting Rule 59(e) standard, the Rule 59(e) factors offer guidance. See Livingston Downs Racing Ass'n v. Jefferson Downs Corp., 259 F.Supp.2d 471, 474-75 (M.D. La. 2002). Under Rule 59(e), a motion to reconsider may not be used to relitigate matters, raise arguments, or submit evidence that could have been presented before the judgment or order was entered. 11 Charles Alan Wright et al., Federal Practice and Procedure § 2810.1 (3d ed.).

         III. Analysis

         A. The Timeliness of Flores's Motion

          The City explains that the motion was filed 73 days after the March 2019 Memorandum and Order, which is more than the “28-days after the entry of judgment” allowed for motions for reconsideration under Rule 59(e). (Docket Entry No. 155 at 10 (citing Fed.R.Civ.P. 59(e))). According to the City, the motion is untimely, even under Rule 60(b), because Flores's “motion for reconsideration is nothing more than his untimely response to the City's summary judgment” and “[h]e could have and should have presented his arguments” when the court was considering that motion. (Id.).

         Flores's motion is properly considered under Federal Rule of Civil Procedure 54(b), which does not limit the time in which the court may revise any order. Fed.R.Civ.P. 54(b). “‘Interlocutory orders,' such as grants of partial summary judgment, ‘are not within the provisions of 60(b), but are left within the plenary power of the court that rendered them to afford such relief from them as justice requires.'” McKay v. Novartis Pharm. Corp., 751 F.3d 694, 701 (5th Cir. 2014) (quoting Zimzores v. Veterans Admin., 778 F.2d 264, 266 (5th Cir. 1985)). Because the March 2019 Memorandum and Order did not adjudicate “the claims or the rights and liabilities” of all the parties, it was an interlocutory order that may be amended under Rule 54(b). Flores's timing in moving for reconsideration is an insufficient basis to deny his motion.

         B. Flores's Request for Rulings on His Objections to the Defendants' Summary Judgment Evidence

          Flores first asks the court to rule on his objections to evidence the defendants filed with their summary judgment motions. (Docket Entry No. 150 at 8). He asserts that “[t]here was no ruling” on his objections, but he does not point to any arguments made before the court's March 2019 Memorandum and Order that raised these evidentiary objections for any rulings. (Id.). His response to the City's summary judgment motion was a copy of his response to Officer Harris's summary judgment motion, which did not include the objections listed in his motion for reconsideration. Instead, that response raised as its sole evidentiary issue whether the lack of footage from the La Estancia surveillance camera showed spoliation. (Docket Entry No. 113 at 15).

         Federal Rule of Civil Procedure Rule 56(e) and the Federal Rules of Evidence govern the submission of evidence in a summary judgment motion. See, e.g., Diamond Offshore Co. v. A&B Builders, Inc., 302 F.3d 531, 544 n.13 (5th Cir. 2002) (discussing the district court's application of Rule 56(e) and the rules of evidence on a summary judgment motion). Under Federal Rule of Civil Procedure 56(e) provides that “[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Under Federal Rule of Evidence 602, a witness's testimony may not be considered unless it is based on personal knowledge. See Cormier v. Pennzoil Expl. & Prod. Co., 969 F.2d 1559, 1561 (5th Cir. 1992). The rules governing hearsay also apply. See Fed. R. Civ. P. 56(e); Fed.R.Evid. 802 (“Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.”).

         Examining these objections for the first time, the court concludes that they are not a basis to reconsider the admissibility of the City's summary judgment evidence. Flores offers no arguments in support of his objections, instead labeling each exhibit with conclusory “hearsay” or “relevance.” (Docket Entry No. 150 at 8); see, e.g., Hoffman v. Bailey, 257 F.Supp.3d 801, 824 (E.D. La. 2017) (“It is not the Court's responsibility to comb through the record to determine the basis for Hoffman's cursory objections or to make arguments on his behalf. Accordingly, the Court denies Hoffman's objections to all of Bailey's exhibits at this time.” (footnote omitted)); Itani v. Viant, Inc., No. 4:10-CV-852-Y, 2012 WL 13019683, at *2 (N.D. Tex. Sept. 4, 2012) (‚ÄúConcerning Itani's remaining objections to Aetna's ...

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