Sherman v. Irwin

Case: 20-30012 Document: 00515767797 Page: 1 Date Filed: 03/05/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 5, 2021
No. 20-30012
Lyle W. Cayce
Clerk
Lisa Sherman,
Plaintiff—Appellant,
versus
Luke Irwin, individually (and in his official capacity as
a Slidell Police Department Officer); Randy Smith,
individually (and in his official capacity as Former
Chief of Police of Slidell, Louisiana); Slidell City,
Defendants—Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC 2:17-CV-04061
Before Barksdale, Southwick, and Graves, Circuit Judges.
Per Curiam:*
This challenge to a summary judgment turns on one question: was
Officer Luke Irwin in Slidell, Louisiana, on 5 May 2016? He presented seven
documents to show he was not; Lisa Sherman offered only her deposition
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-30012 Document: 00515767797 Page: 2 Date Filed: 03/05/2021
No. 20-30012
testimony that he was. The district court concluded, inter alia: the officer
was not in Slidell on 5 May 2016; and, therefore, the officer, former Chief of
Police Randy Smith, and the City of Slidell were entitled to summary
judgment against the claims filed pursuant to 42 U.S.C. § 1983.
AFFIRMED.
I.
Sherman and the officer were in a consensual sexual relationship at
some point between 2012 and 2015 (the dates are disputed). Sherman alleges
that, after the relationship ended in February 2015, the officer continually
forced her to engage in nonconsensual sex for an ensuing 16 months. In that
regard, she alleges the officer leveraged his position as an officer for the
Slidell police department to coerce her into nonconsensual sex, including
threatening to interfere in her attempts to gain custody of a child. She also
alleges Smith—the former chief of the police department—repeatedly failed
to prevent the officer from sexually assaulting her.
Sherman maintains her last sexual contact with the officer was in
Slidell on 5 May 2016. (She alleged in her amended complaint: he called her
that afternoon and urgently wanted to see her; after she declined to meet, he
arrived at her home and demanded she enter his vehicle, which she did; and
he then drove them to an empty service road and sexually assaulted her.)
In April 2017, Sherman filed this action against the officer, Smith, and
the City, presenting: claims pursuant to 42 U.S.C. § 1983 against
defendants; state-law claims against the officer for physical assault, sexual
assault, and intentional infliction of emotional distress; and a state-law claim
against Smith and the City for vicarious liability. (The current chief of the
department was also included as a defendant but was soon dismissed
voluntarily.)
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For the claims pursuant to § 1983, the district court applied
Louisiana’s one-year statute of limitations for personal-injury actions. See
La. Civ. Code Ann. art. 3492; King-White v. Humble Indep. Sch. Dist., 803
F.3d 754, 758 (5th Cir. 2015) (explaining that, for claims pursuant to § 1983,
“the settled practice is to borrow an ‘appropriate’ statute of limitations from
state law”). Therefore, Sherman’s claims pursuant to § 1983 and predicated
on conduct before April 2016 were dismissed. Consequently, the only
actionable conduct pursuant to § 1983 was the alleged sexual assault on 5
May 2016.
Following completion of discovery, including Sherman and the
officer’s being deposed, Smith and the City moved for summary judgment,
presenting three items to show the officer was not in Slidell on 5 May: (1) his
deposition testimony that he was in Montana between 27 April and 6 May to
care for his ailing father; (2) the officer’s application under the Family
Medical Leave Act (FMLA) to care for his father, including his father’s
Montana healthcare provider’s signature dated 5 May 2016 on the FMLA
paperwork; and (3) documents from the officer’s police-department
personnel folder containing his timesheets for the two-week period for which
he sought leave to see his father.
During a status conference less than a month later, the officer
informed the court that additional evidence demonstrated he was not in
Slidell on 5 May. Notwithstanding Sherman’s objections, the court granted
the officer one day to file a supplemental memorandum joining Smith’s and
the City’s summary-judgment motion.
The supplemental memorandum included four additional items: (4)
a banking statement from the officer’s joint account with his wife, showing
purchases in Montana between 28 April and 6 May; (5) an airline flight
confirmation in his name for a round-trip flight between New Orleans,
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Louisiana, and Billings, Montana, on 27 April and 6 May; (6) a 5 May receipt
from a motel in Montana, bearing his name; and (7) a statement for his wife’s
credit card showing two charges at the motel on 5 May. Sherman responded
the next week, challenging, inter alia, the reliability of the four new items and
requesting a discovery continuance pursuant to Federal Rule of Civil
Procedure 56(d).
Considering the seven items, the court granted summary judgment to
defendants on Sherman’s remaining claims pursuant to § 1983 and declined
to exercise supplemental jurisdiction for her Louisiana state-law claims. In
that order, the court also dismissed Sherman’s Rule 56(d) continuance
motion.
II.
Sherman raises one issue on the merits: whether defendants’
evidence was sufficient to permit summary judgment regarding the 5 May
2016 claims pursuant to § 1983. She also presents two “subsidiary issues”,
claiming the court erred procedurally in: failing to exclude the four
supplemental items produced in support of summary judgment; and denying
her Rule 56(d) continuance motion.
A.
First considered is whether there was procedural error. “The
standard of review for discovery matters is steep.” United States v. Holmes,
406 F.3d 337, 357 (5th Cir. 2005). Discretionary discovery rulings are
reviewed for abuse of discretion and will not be reversed “unless arbitrary or
clearly unreasonable”. Haase v. Countrywide Home Loans, Inc., 748 F.3d 624,
631 (5th Cir. 2014) (internal quotation marks and citation omitted); Renfroe
v. Parker, 974 F.3d 594, 600 (5th Cir. 2020) (reviewing for abuse of discretion
denial of Rule 56(d) continuance motion). In addition, “[t]he harmless error
doctrine applies to the review of evidentiary rulings, so even if a district court
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has abused its discretion, we will not reverse unless the error affected the
substantial rights of the parties”. Heinsohn v. Carabin & Shaw, P.C., 832 F.3d
224, 233 (5th Cir. 2016) (internal quotation marks and citation omitted); see
Fed. R. Civ. P. 61. “The party asserting the error has the burden of
proving that the error was prejudicial.” Ball v. LeBlanc, 792 F.3d 584, 591
(5th Cir. 2015) (citation omitted). Essentially for the reasons stated by the
district court, the two procedural-error claims fail.
1.
Sherman contends defendants were required to explain how the
supplemental evidence would be admissible at trial. Fed. R. Civ. P.
56(c)(2) (“A party may object that the material cited to support or dispute a
fact cannot be presented in a form that would be admissible in evidence.”).
Along that line, Sherman maintains defendants failed to offer any
explanations for the four additional items, so they should be stricken. See
Fed. R. Civ. P. 56(c)(2) advisory committee’s note to 2010 amendment
(“The burden is on the proponent to show that the material is admissible as
presented or to explain the admissible form that is anticipated.”). Sherman
does not adequately state her substantial rights were affected by the court’s
consideration of the four items. Instead, she simply asserts the court erred
by failing to exclude them from its consideration in assessing the summary-
judgment motion.
In granting summary judgment, the court dismissed objections based
on Rule 56(c), explaining the evidence “would likely be admissible under the
business-records exception to hearsay”. Any purported error in the court’s
considering the documents without defendants’ providing an explanation as
to their admissibility is assuredly harmless—particularly because Sherman
doesn’t claim she has any additional evidence or wasn’t granted a similar
allowance. See Leatherman v. Tarrant Cnty. Narcotics Intel. & Coordination
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Unit, 28 F.3d 1388, 1398 (5th Cir. 1994) (affirming sua sponte summary
judgment for defendant without notice because, inter alia, “[i]t does not
appear that [plaintiffs] have any additional evidence to offer regarding
[defendants’] liability; they do not identify any, and we find none in our
review of the record”); Atkins v. Salazar, 677 F.3d 667, 678 (5th Cir. 2011)
(applying harmless error review to entry of summary judgment sua sponte
without notice).
2.
Rule 56(d) motions for additional discovery are “broadly favored and
should be liberally granted”. Am. Fam. Life Assurance Co. of Columbus v.
Biles, 714 F.3d 887, 894 (5th Cir. 2013) (internal quotation marks and citation
omitted). Nevertheless, the Rule 56(d) movant “may not simply rely on
vague assertions that additional discovery will produce needed, but
unspecified, facts”. Id. (internal quotation marks and citation omitted).
That movant must, instead, “set forth a plausible basis for believing that
specified facts, susceptible of collection within a reasonable time frame,
probably exist and indicate how the emergent facts, if adduced, will influence
the outcome of the pending summary judgment motion”. Raby v. Livingston,
600 F.3d 552, 561 (5th Cir. 2010) (citation omitted).
Sherman fails to provide a plausible basis for facts capable of collection
probably existing. Her Rule 56(d) motion was limited, lacking any
explanation for how the desired discovery—deposing the officer and his
wife—would likely lead to production of facts that would influence the
pending summary-judgment motion. See Washington v. Allstate Ins. Co., 901
F.2d 1281, 1285 (5th Cir. 1990) (“This court has long recognized that . . .
plaintiff’s entitlement to discovery prior to a ruling on a motion for summary
judgment is not unlimited, and may be cut off when the record shows that the
requested discovery is not likely to produce the facts needed by the plaintiff
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to withstand a motion for summary judgment.”). Indeed, as the court
emphasized, Sherman did not provide any evidence corroborating her
allegations during almost two-and-a-half years of discovery.
B.
Essentially for the reasons stated by the court in its well-reasoned
opinion, summary judgment was proper. In that regard, summary judgment
is appropriate when “the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of
law”. Fed. R. Civ. P. 56(a). “In determining whether a district court
properly granted summary judgment, this Court must review the record
under the same standards that guided the district court.” AT&T, Inc. v.
United States, 629 F.3d 505, 510–11 (5th Cir. 2011) (citation omitted).
Sherman fails to provide the facts necessary to create the requisite
genuine dispute of material facts. Defendants produced seven documents
reflecting the officer was not in Slidell on 5 May. Granted the alleged sexual
assault does not admit of documentary evidence, Sherman relies exclusively
on her deposition testimony for the officer’s location on that date. As the
court observed, Sherman testified she spoke to the officer by telephone on 5
May, yet she never requested telephone records for that day. Further, her
contentions related to the unreliability of the four supplemental documents
are unavailing and do not seriously challenge their accuracy.
III.
For the foregoing reasons, the judgment is AFFIRMED.
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