United States District Court, D. Nebraska
TOMPSON L. AWNINGS, Plaintiff,
JOSHUA FULLERTON and RYAN DUNCAN, Defendants.
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge
April 24, 2017, the court entered judgment dismissing
Plaintiff's action (Filing No. 134) after
granting summary judgment in favor of Defendants (Filing No.
133). On May 22, 2017, Plaintiff filed a motion to
alter or amend the judgment pursuant to Federal Rule of
Civil Procedure 59(e). For the reasons discussed below,
the motion will be denied.
district court has broad discretion in determining whether to
grant or deny a motion to alter or amend judgment pursuant to
Rule 59(e). United States v. Metropolitan St.
Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006).
Rule 59(e) motions serve the limited function of correcting
“manifest errors of law or fact or to present newly
discovered evidence.” Id.(quoting
Innovative Home Health Care v. P.T.-O.T. Assoc. of the
Black Hills, 141 F.3d 1284, 1286 (8th Cir.1998)).
“Such motions cannot be used to introduce new evidence,
tender new legal theories, or raise arguments which could
have been offered or raised prior to entry of
asserts the court erred (1) “in excluding the
statements of Plaintiff of his diagnosis and treatment at
Bryan West after his release from jail” (Filing No.
136 at CM/ECF p. 1); (2) “in finding
statements made by Plaintiff did not controvert
Defendants' statement of material facts in their brief in
support of their motion for summary judgment” (Filing
No. 136 at CM/ECF p. 11); (3) “in finding
Defendants were entitled to qualified immunity on
Plaintiff's excessive force claims” (Filing No.
136 at CM/ECF p. 13); (4) “in finding
Plaintiff's injury was de minimis” (Filing
No. 136 at CM/ECF p. 13); and (5) “in finding
Plaintiff's resisting arrest conviction precluded his
false arrest claim against Defendant Fullerton” (Filing
No. 136 at CM/ECF p. 13). These five assertions will
be addressed in the order presented.
Plaintiff's Statements Regarding Medical Diagnosis and
court sustained Defendants' objections to Plaintiff's
statements of fact indicating he was diagnosed and treated
for broken ribs and a collapsed lung following his release
from jail (Filing No. 133 at CM/ECF pp. 21-23 & n.
22-25). The only evidence offered by Plaintiff in opposition
to the motion for summary judgment was a personal declaration
signed by him on March 2, 1017 (Filing No. 122-2),
and this declaration was the only evidence that was
referenced by Plaintiff in support of the excluded statements
of fact (Filing No. 125 at CM/ECF pp. 24-25, ¶¶
the Federal Rules of Civil Procedure, “[a] party
asserting that a fact cannot be or is genuinely disputed must
support the assertion by . . . citing to particular parts of
materials in the record . . ..” Fed. R. Civ. P.
56(c)(1)(A). “The court need consider only the
cited materials, but it may consider other materials in the
record.” Fed. R. Civ. P. 56(c)(3).
support of his Rule 59(e) motion, Plaintiff notes
that his medical records were included in a filing that was
made by Defendants on January 30, 2017, in opposition to
Plaintiff's motion for leave to amend (Filing No.
108-1). It is known that the documents were
produced by Plaintiff in response to Defendants' request
for production of documents (Filing No. 108-1 at CM/ECF
pp. 12-60), but they are not otherwise
be considered on summary judgment, documents must be
authenticated by and attached to an affidavit made on
personal knowledge setting forth such facts as would be
admissible in evidence . . ..” Life Inv'rs Ins.
Co. of Am. v. Fed. City Region, Inc., 687 F.3d 1117,
1122 (8th Cir. 2012) (quoting Stuart v. Gen. Motors
Corp., 217 F.3d 621, 635 n.20 (8th Cir. 2000)); see also
NECivR 7.1(a)(2)(C) (“An affidavit must identify and
authenticate any documents offered as
evidence.”). “To satisfy the requirement of
authenticating or identifying an item of evidence, the
proponent must produce evidence sufficient to support a
finding that the item is what the proponent claims it
is.” Fed.R.Evid. 901(a).
Plaintiff did not reference the medical records in the brief
filed in opposition to Defendants' motion for summary
judgment, the court was not required to search out the
records on its own and consider them. In fact, the court
could not have considered the records for purposes of
deciding the summary judgment motion because they are not
authenticated. While the court might have given Plaintiff an
opportunity to authenticate the documents had it been made
aware of them prior to ruling on the motion for summary
judgment, see Fed.R.Civ.P. 56(e)(1), it will not do
so now, after judgment has been entered. That is not the
purpose of Rule 59(e).
inadmissible statements of fact contained in Plaintiff's
personal declaration, Plaintiff notes that “the
standard is not whether the evidence at the summary judgment
stage would be admissible at trial-it is whether it
could be presented at trial in an admissible
form.” Gannon Int'l, Ltd. v. Blocker, 684
F.3d 785, 793 (8th Cir. 2012) (emphasis in original). When an
objection is made, however, “the burden is on the
proponent of the evidence to show that the material is
admissible as presented or to explain the admissible form
that is anticipated.” Id.(quoting Advisory
Committee Note to Rule 56(c)(2)). Plaintiff did not
do so. Granting Defendants' motion for
summary judgment was therefore proper. See Fed.R.Civ.P.
example, Plaintiff's statement that he “was
informed by the examining physician [on August 6, 2013] . . .
that [he] had four broken ribs and a collapsed lung”
(Filing No. 122-2 at CM/ECF pp. 3-4) is inadmissible hearsay,
which “cannot be used to avoid summary judgment.”
Cherry v. Ritenour Sch. Dist., 361 F.3d 474, 480
(8th Cir. 2004). Plaintiff now claims he “could call
the examining physician at trial to testify as to the
diagnosis” (Filing No. 136 at CM/ECF p. 6), but there
is no evidence to support this claim. The court did not err in
sustaining Defendants' objection to this hearsay
statement or in entering summary judgment in their favor.
See, e.g., Banks v. Deere, 829
F.3d 661, 668 (8th Cir. 2016) (affirming grant of summary
judgment to defendants where plaintiff relied on inadmissible
hearsay and failed to show why he could not have obtained
competent evidence from proposed witnesses).
expert testimony is not always necessary to prove causation
in an excessive force case, see Ziesmer v. Hagen,
785 F.3d 1233, 1238-39 (8th Cir. 2015), Defendants'
motion for summary judgment was premised not on
Plaintiff's lack of proof regarding causation, but
rather, on the fact that his injuries were de
minimis; that is, Plaintiff only had a small cut over
his eye and an x-ray at the hospital revealed no broken ribs
or other injuries to his lungs or abdominal region. Plaintiff
produced no competent evidence to dispute this fact.