United States District Court, D. Massachusetts
DAMARIS JUSTINIANO, as the Personal Representative of the Estate of WILFREDO JUSTINIANO, JR., Plaintiff,
STEPHEN WALKER and TIMOTHY P. ALBEN, Defendants.
ORDER ON PLAINTIFF'S MOTION TO VACATE
L. CABELL, U.S.M.J.
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
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.
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. 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.
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).
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).
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). (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.
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.
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.Consequently, the court's
order of summary judgment should now be vacated.
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
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).
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).
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.
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.
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