United States District Court, D. Massachusetts
MEMORANDUM OF DECISION AND ORDER REGARDING
DEFENDANTS' MOTION FOR RECONSIDERATION (Dkt. No.
KATHERINE A. ROBERTSON UNITED STATES MAGISTRATE JUDGE
three individual Holyoke Police Officer Defendants, Josue
Colon, Roger Goudreau, and Emil Morales (collectively
"Defendants"), have asked this court to reconsider
so much of its May 25, 2018 order as denied summary judgment
on Plaintiff's claims brought under 42 U.S.C. § 1983
(Counts I, II, III, IV and X). As grounds for their motion
for reconsideration, Defendants contend that the Supreme
Court's April 2, 2018 decision in Kisela v.
Hughes, 138 S.Ct. 1148 (2018) (per curiam), altered the
summary judgment standard of review for claims of qualified
immunity. Defendants submit that Kisela directs the
court to view the evidence in the light most favorable to
them as the moving parties. Plaintiff disagrees with
Defendants' reading of Kisela and has opposed
Defendants' motion. For the reasons that follow, upon
reconsideration of the court's decision and order of May
25, 2018, the court's ruling on Defendants' motion
for summary judgment stands as to Counts II (unlawful
arrest), III (the excessive use of force), and X (unlawful
entry) and so much of Counts I (unreasonable seizure) and IV
(failure to intervene) as assert claims against Defendant
Colon, and Defendants' motion for reconsideration is
motion for reconsideration of an order which has granted
summary judgment should be treated as a Rule 59(e)
motion." Colón v. Fraticelli, 181
F.Supp.2d 48, 50 (D.P.R. 2002) (citing United States v.
Podolsky, 158 F.3d 12, 16 (1st Cir. 1998); Vargas v.
Gonzalez, 975 F.2d 916, 917 (1st Cir. 1992);
Feinstein v. Moses, 951 F.2d 16, 19 n.3 (1st Cir.
1991); Appeal of Sun Pipe Line Co., 831 F.2d 22, 24
(1st Cir. 1987)). "A party may invoke Rule 59(e) and ask
a court to amend its judgment based on newly discovered
material evidence or because the court committed a manifest
error of law or fact." Id. (citing Aybar v.
Crispin-Reyes, 118 F.3d 10, 16 (1st Cir. 1997)).
"Additionally, the movant may seek to amend the judgment
based on an intervening change in the law." Id.
(citing Hayes v. Douglas Dynamics, Inc., 8 F.3d 88,
90-91 n.3 (1st Cir. 1993); Nat'l Metal Finishing Co.
v. BarclaysAm./Commercial, Inc., 899 F.2d 119, 124 n.2
(1st Cir. 1990)). "Rule 59 may not be used to present
arguments or evidence which could have and should have been
presented before judgment was entered, but were not."
Id. See Aybar, 118 F.3d at 16; F.D.I.C. v. World
Univ. Inc., 978 F.2d 10, 16 (1st Cir. 1992).
points out that the Kisela decision was issued
before the undersigned entered the judgment on
Defendants' summary judgment motion and Defendants did
not bring their view of Kisela to the court's
attention. When indulgently read, however, Defendants'
motion for reconsideration is based on an alleged legal error
in the standard of review applied to Defendants'
qualified immunity claims. Consequently, the court will
revisit its determination of qualified immunity in light of
the Court's decision in Kisela.
Kisela Did Not Alter the Standard of Review of Qualified
Immunity Claims on Summary Judgment
comparing the evidence recited by the majority opinion in
Kisela with the evidence upon which the dissent
relied, Defendants have concluded that Kisela
overruled long-standing precedent that requires courts
considering claims of qualified immunity on summary judgment
to view the facts in the light most favorable to the
non-moving party. Now, according to Defendants, the
perspective has shifted and courts must view the record in
the light most favorable to the law enforcement officers who
are claiming qualified immunity. Defendants are seeking
application of this revised standard to reverse this
court's determination that they were not entitled to
summary judgment on Plaintiff's § 1983 claims based
on qualified immunity. Plaintiff has countered that
Kisela did not articulate a new standard of
review. Plaintiff's argument is persuasive.
Kisela, Petitioner, Tucson, Arizona Police Officer
Andrew Kisela, sought summary judgment on the ground that he
was entitled to qualified immunity for his alleged use of
excessive force against Respondent Amy Hughes. According to
the majority's opinion, after Kisela received a report
that Hughes had been "engaging in erratic behavior with
a knife," he observed her holding a large kitchen knife
as she took steps toward another woman who was standing in
close proximity. Kisela, 138 S.Ct. at 1150. Hughes
refused to drop the knife notwithstanding officers'
repeated commands for her to do so. Id. Fearing that
she posed an imminent threat to the other woman, Kisela fired
four shots through a chain link fence and injured Hughes.
Id. at 1150-51. She brought an action under 42
U.S.C. § 1983 "alleging that Kisela had used
excessive force in violation of the Fourth Amendment."
Id. at 1151. Kisela asserted qualified immunity.
Id. at 1150. The question before the Court was
"whether at the time of the shooting Kisela's
actions violated clearly established law." Id.
The majority answered the question in the negative finding
that qualified immunity shielded Kisela from liability.
Id. at 1153. In the dissent, Justice Sotomayor, who
was joined by Justice Ginsburg, disagreed, indicating that
Kisela was not entitled to qualified immunity as a matter of
law because "precedent existing at the time of the
shooting clearly established the unconstitutionality of [his]
conduct." Id. at 1161 (Sotomayor, J.,
the bedrock principle of summary judgment practice, the
majority indicated that they viewed the record in the light
most favorable to the non-movant. See Id. at 1150,
1151; see also Tolan v. Cotton, 134 S.Ct. 1861,
1863, 1866 (2014) (per curiam) ("In articulating the
factual context of the case, the Fifth Circuit failed to
adhere to the axiom that in ruling on a motion for summary
judgment, '[t]he evidence of the nonmovant is to be
believed, and all justifiable inferences are to be drawn in
his favor.'") (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986)). Although the
Kisela dissent criticized the majority for
"fall[ing] short" of "honor[ing] th[e]
well-settled principle" articulated in Tolan,
it did not indicate that the standard of review was
overruled. Kisela, 138 S.Ct. at 1155 (Sotomayor, J.,
dissenting). Indeed, Defendants cite no authority for their
position that Kisela revised the standard of review
and cases that have considered Kisela in deciding
whether a law enforcement officer should be granted summary
judgment based on qualified immunity have followed the
established standard when considering the record evidence.
See Hedgpeth v. Rahim, No. 16-7146, 2018 WL 3117808,
at *1 (D.C. Cir. June 26, 2018) ("For purposes of
reviewing the court's grant of summary judgment against
Hedgpeth, we view the facts giving rise to his arrest in the
light most favorable to him."); Wilson v. Prince
George's Cty., No. 17-1856, 2018 WL 3015045, at *3
(4th Cir. June 18, 2018) ("In conducting our review, we
construe the evidence in the light most favorable to Wilson,
the non-moving party."); Easley v. City of
Riverside, 890 F.3d 851, 856 (9th Cir. 2018) ("On
de novo review of a district court's summary-judgment
ruling, this Court 'must view the evidence, including all
reasonable inferences, in favor of the nonmoving
party.'") (quoting Reed v. Lieurance, 863
F.3d 1196, 1204 (9th Cir. 2017)); McCoy v. Meyers,
887 F.3d 1034, 1039, 1044 (10th Cir. 2018) (the court viewed
the record in the light most favorable to the nonmoving party
and drew all reasonable inferences in his favor); Sam v.
Richard, 887 F.3d 710, 713 (5th Cir. 2018) ("To
decide if the non-movant has raised a genuine issue, we view
all facts and evidence in the light most favorable to him and
draw all reasonable inferences in his favor."); Esty
v. Town of Haverhill, Civil No. 17-cv-59-AJ, 2018 WL
2871862, at *4 (D.N.H. June 8, 2018) ("The court must
'draw all reasonable inferences from the record in the
light most favorable to the nonmoving party, disregarding any
"conclusory allegations, improbable inferences, or
unsupported speculation."'") (quoting
McGrath v. Tavares, 757 F.3d 20, 25 (1st Cir. 2014)
(quoting Alicea v. Machete Music, 744 F.3d 773, 778
(1st Cir. 2014))); Avina v. Bohlen, No.
13-CV-1433-JPS, 2018 WL 2324105, at *11 (E.D. Wis. May 22,
2018) ("[A]gainst these principles of leniency toward
officers the Court must balance the standard of review at
summary judgment, which is quite generous to a non-movant
seeking to overcome an assertion of qualified immunity. While
the non-movant must show that the particular conduct in
question was clearly unlawful under existing law, the
particularized version of events used to make that assessment
is taken from the undisputed facts as construed in his
favor.") (citing Williams v. Ind. State Police
Dep't, 797 F.3d 468, 484 (7th Cir. 2015)); see
also Winfield v. Town of Andover, CIVIL ACTION NO.
17-11051-WGY, 2018 WL 1627437, at *9 (D. Mass. Apr. 4, 2018)
(in allowing the plaintiff's motion to amend the
complaint, the court stated: "Unless this Court is going
to engage in forbidden balancing as between these two
versions, it is pellucidly clear that Ms. Winfield's
allegations adequately state a claim for the exercise of
excessive force under color of law.") (citing
Kisela, 138 S.Ct. at 1148).
discussed in the ruling on Defendants' motion for summary
judgment, the parties presented vastly divergent views of the
events that are the subject of the instant law suit. See
Tolan, 134 S.Ct. at 1866 (2014) ("[C]ourts may not
resolve genuine disputes of fact in favor of the party
seeking summary judgment."). Defendants have failed to
demonstrate that by viewing the record evidence in the light
most favorable to Plaintiff, the non-moving party, and
drawing all reasonable inferences in her favor, the court
committed legal error when rejecting Defendants'
assertions of qualified immunity. Accordingly,
Defendants' motion for reconsideration is denied.
foregoing reasons, the court DENIES Defendants' motion
for reconsideration (Dkt. No. 70). The clerk's office is
directed to schedule a case management conference at ...