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Justiniano v. Walker

United States District Court, D. Massachusetts

December 24, 2019

DAMARIS JUSTINIANO, as the Personal Representative of the Estate of WILFREDO JUSTINIANO, JR., Plaintiff,


          DONALD L. CABELL, U.S.M.J.


         This court previously entered judgment in favor of defendant Trooper Stephen Walker after granting his motion for summary judgment. (D. 90. 92). The plaintiff moves to vacate the judgment on the ground of newly discovered evidence. (D. 97). For the reasons explained below, the motion is denied.


         Following the unfortunate fatal shooting of Wilfredo Justiniano by defendant Massachusetts State Trooper Stephen Walker during a roadside incident, Damaris Justiniano as personal representative of his estate brought suit against Trooper Walker, Walker's superior Colonel Timothy Alben and, in a separate state court action, the Massachusetts State Police. As it concerns Trooper Walker and this matter, the plaintiff's principal claim was that Trooper Walker violated Justiniano's Fourth Amendment right to be free from the use of excessive force.

         Walker moved for summary judgment on the ground that he acted reasonably and would regardless be entitled to qualified immunity. In considering the motion, the court relied upon evidence from civilian observers, but also relied upon uncorroborated evidence from Trooper Walker that Justiniano wielded a pen as a weapon and made threatening statements to Trooper Walker.[1] The court found based on the entire record that the defendant acted reasonably under the circumstances and therefore did not use excessive force. The court found further that Trooper Walker would enjoy qualified immunity even if his actions were excessive because it would not have been clear to a reasonable officer in his position that his actions were unlawful. The court accordingly granted the defendant's motion for summary judgment.

         Justiniano timely appealed to the First Circuit Court of Appeals. Well into the appellate process, however, after briefing and oral argument, the plaintiff moved pursuant to Fed.R.Civ.P. 60 to have this court set aside its judgment on the ground of newly discovered evidence, namely evidence from Trooper Walker's personnel file tending to suggest that he has on prior occasions been untruthful when faced with discipline procedures arising from incidents of misconduct. (D. 97).

         This court denied the motion on the ground that the court lacked subject matter jurisdiction to act where the case was pending on appeal. (D. 100). The plaintiff appealed that ruling as well and the Court of Appeals in response vacated this court's denial, and remanded the matter with instructions to construe the plaintiff's motion as one under Fed.R.Civ.P. 62.1, which inter alia would permit the court to deny the motion or alternatively indicate whether it would grant the motion. (D. 106).

         With respect to the substance of the pending motion, the plaintiff asserts that she discovered new material evidence in connection with a separate but factually related matter pending in the Massachusetts state superior court. See Justiniano v. Department of State Police, No. 1684CV00399 (Mass. Super. Ct. Suffolk Co. filed Feb. 5, 2016).[2] (For reference, the present federal action was commenced almost a year earlier than the state court action, on April 14, 2015). Of relevance here, and as the parties acknowledged at the hearing on the present motion, the parties had agreed that four or five depositions, including that of Trooper Walker, would be cross-noticed. Trooper Walker was deposed on December 14, 2017.

         The plaintiff contends specifically that on June 25, 2019 she received through discovery in the state court action portions of Trooper Walker's personnel file. She asserts that the file contains evidence indicating that the defendant was accused of some misconduct on two prior occasions and in each case offered explanations which his superiors or investigating officer did not believe. The plaintiff also discovered that although Trooper Walker testified in his deposition for this case that he filed a use of force report in connection with Justiniano's shooting, the State Police informed the plaintiff through the state court action that it could not find any such report, suggesting, so the plaintiff contends, that Trooper Walker made a false statement and that no report was in fact ever filed. (D. 105-8).

         The plaintiff argues that the evidence shows that Trooper Walker has a history of fabricating stories when he knows his conduct is under investigation. She argues that his credibility in the present case is suspect in light of this evidence, and that this court therefore can no longer credit his uncorroborated statements about what transpired between him and Justiniano. The plaintiff argues that without the force of Trooper Walker's statements, genuine issues of fact exist as to whether he acted reasonably when he used pepper spray and/or shot Justiniano.[3]Consequently, the court's order of summary judgment should now be vacated.

         Walker demurs and advances three reasons why the plaintiff's motion should be denied. First, the plaintiff cannot show under Rule 60(b)(2) that she could not have discovered the evidence earlier by exercising due diligence. Second, even if she could, the evidence in the record supports the court's decision that Trooper Walker acted reasonably even if his uncorroborated statements are excised from the calculus. Third, Trooper Walker would still be entitled to qualified immunity in any event. As discussed below, the court agrees that the plaintiff has not shown satisfactorily that she could not have through the exercise of diligence discovered the evidence sooner than she did. Even assuming she could, the court finds that it would conclude that qualified immunity applies even if it incorporated the force of the new evidence by ignoring the defendant's uncorroborated statements.


         Federal Rule of Civil Procedure 60(b)(2) entitles a party to relief from summary judgment based on newly discovered evidence if (1) the evidence has been discovered since the judgment; (2) the evidence could not by due diligence have been discovered earlier by the movant; (3) the evidence is not merely cumulative or impeaching; and (4) the evidence is of such a nature that it would probably change the result were a new trial to be granted. Mitchell v. United States, 141 F.3d 8, 18 (1st Cir. 1998). The movant bears the burden of satisfying each of these criteria. U.S. Steel v. M. DeMatteo Constr. Co., 315 F.3d 43, 52 (1st Cir. 2002).

         A party who argues that newly discovered evidence warrants relief from a judgment must, at the very least, offer a convincing explanation as to why the party could not have proffered the crucial evidence at an earlier stage of the proceedings. Fed.R.Civ.P. 60(b)(2); see Karak v. Bursaw Oil Corp., 288 F.3d 15 (1st Cir. 2002). “In order for evidence to be newly discovered, the party seeking a new trial must be unaware of the existence of the evidence before or during the trial.” Kettenbach v. Demoulas, 901 F.Supp. 486, 494 (D. Mass. 1995).

         The parties here dispute whether the plaintiff has satisfied the second (due diligence) and fourth (materiality) criteria. The plaintiff acknowledged at the hearing that she was aware of Trooper Walker's personnel file long before the defendant moved for summary judgment but had no basis to be aware that the file might contain evidence that Walker was untruthful when faced with discipline, or that he made misrepresentations in his deposition.

         The defendant counters that the plaintiff knew about the personnel file from the outset of the case. The defendant notes that the plaintiff sought discovery of the file no later than February 2017 (about a year before the defendant moved for summary judgment on February 15, 2018 (D. 58)), and did not follow up with a more narrow request or a motion to compel when the defendant objected to producing or agreeing to have the State Police produce his entire personnel file, and also did not ask this court to delay ruling on the defendant's motion for summary judgment.

         As discussed below, the plaintiff is not entitled to relief under Rule 60(b)(2) because she has not shown that the evidence concerning Trooper Walker's alleged misconduct and false statements could not have been discovered sooner than it was. Even assuming arguendo that the plaintiff met the rule's requirements, the new evidence does not alter this court's conclusion that Trooper Walker would ...

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