James Whitehead v. Neil Bowen

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0709n.06
Filed: November 18, 2008
Case No. 07-6348
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JAMES WHITEHEAD, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
NEIL BOWEN, ) DISTRICT OF KENTUCKY
)
Defendant-Appellee. )
)
_______________________________________ )
)
)
BEFORE: GUY, BATCHELDER, and MCKEAGUE, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. Plaintiff–Appellant James Whitehead
(“Whitehead”) appeals the district court’s grant of summary judgment in favor of Defendant Pioneer
Valley Police Officer Neil Bowen (“Bowen”) in this action brought under 42 U.S.C. § 1983 and state
law seeking damages for Bowen’s alleged use of excessive force in the course of an arrest.
Whitehead appeals as well the court’s denial of his Rule 59(e) Motion to Alter, Amend or Vacate
that decision. For the following reasons, we AFFIRM the judgment of the district court.
I. BACKGROUND
At 8:40 AM on March 17, 2005, an officer of the Pioneer Valley Police Department stopped
the vehicle in which Whitehead was a passenger. Upon discovering that there were outstanding
warrants for Whitehead, the officer arrested him. During the course of the arrest, Whitehead suffered
a broken wrist.
On March 17, 2006, Whitehead filed this § 1983 action, naming Officer Bowen as the sole
defendant. Whitehead claimed that Bowen had been the officer who “detained, seized and arrested
Whitehead,” and that “[d]uring this detention, seizure, charge, and arrest, Bowen, used excessive
force, breaking Whitehead’s wrist, causing Whitehead to sustain physical pain and injury.” Bowen
timely filed an answer to the complaint, specifically denying these allegations and stating, among
other things, that he “had no contact with nor did he detain Plaintiff on the date that is the subject
of Plaintiff’s Complaint.” Bowen commenced document discovery in April of 2006, but the docket
reflects no discovery undertaken by Whitehead; indeed, the docket reflects no other activity in the
case until the parties held planning and scheduling conferences in late November and mid-December
of that year. Whitehead submitted his initial disclosures on December 29, 2006, and Bowen
submitted his on January 9, 2007. Notably, Bowen’s disclosure specified that he would defend on
the basis that he was not the individual who arrested the plaintiff.
On January 12, 2007, some ten months after Whitehead initiated this lawsuit, Bowen moved
for summary judgment, arguing that he was not the officer who arrested Whitehead; that at 9:15 AM
on the morning in question he had in fact been in court testifying in an unrelated matter,
Commonwealth of Kentucky v. Vance C. Green; and that the arresting officer was Dale Elliot, Chief
of the Pioneer Village Police Department. Bowen supported his motion with his own signed
affidavit stating, among other things, that he was “not the police officer who arrested Mr. Whitehead
on March 17, 2005, as alleged in his Complaint”; a copy of the subpoena for his appearance to testify
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in the Green case; and a docket sheet showing that he had testified in the Green case.1 Bowen also
provided the citation that had been issued to Whitehead on the morning of March 17, 2005, and
Whitehead’s jail record from that date, each of which shows Chief Elliot as the arresting officer.
Whitehead, on the other hand, submitted no affidavit or other evidence in response to Bowen’s
motion for summary judgment.
The district court granted summary judgment to Bowen on April 5, 2007, finding that Bowen
had set out detailed facts demonstrating “that he was not the arresting officer . . . [and]
uncontradicted proof that he was somewhere entirely different at the time of the incident,” and that
Whitehead had failed to provide sufficient evidence to withstand summary judgment. The court
noted that “‘[a] plaintiff may not, in defending against a motion for summary judgment, rest on the
mere allegations or denials of his pleadings,’” Whitehead v. Bowen, 2007 U.S. Dist. LEXIS 25468
at *3 (W.D. Ky. Apr. 4, 2007) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 259 (1986)),
and that Whitehead had provided no evidence that Bowen had any personal or supervisory role in
the alleged deprivation of Whitehead’s constitutional right to be free from the use of excessive force,
and therefore, no genuine issue of material fact existed under his §1983 or state law claims,
Whitehead, 2007 U.S. Dist. LEXIS 25468 at *1-5.
On April 23, 2007, pursuant to Fed. R. Civ. P. 59(e), Whitehead filed a Motion to Alter,
Amend or Vacate the court’s summary judgment order. Whitehead claimed that at the time Bowen
filed for summary judgment Whitehead had not had the opportunity to conduct any discovery and
thus could not present evidence contradicting Bowen’s assertion that he was not the arresting officer.
1
On the docket sheet, Bowen’s name is misspelled as “Bolin,” but W hitehead does not contend that Bowen
did not testify in the Green case at the time specified in the subpoena.
3
Whitehead tendered with the motion an affidavit stating that, during the traffic stop, he was asked
to exit the vehicle by an officer with a nameplate bearing the name “Bowen,” and that during his
“detention, seizure, charge and arrest” this officer used excessive force, breaking Whitehead’s wrist.
Whitehead argued that this “direct evidence” showed that a genuine issue of material fact existed,
and therefore, the Court should grant his Rule 59(e) motion.
On October 3, 2007, the district court denied Whitehead’s Rule 59 (e) motion. Whitehead
v. Bowen, 2007 U.S. Dist. LEXIS 74875 (W.D. Ky. Oct. 2, 2007). The court found insufficient and
untimely Whitehead’s post-judgment affidavit, and unpersuasive his claim that summary judgment
had been prematurely entered. The court noted that Whitehead had commenced the action ten
months prior to Bowen’s motion for summary judgment, but had offered no explanation as to why
he had failed to undertake any discovery or what specific facts he might have discovered that would
create genuine issues for trial.
On November 2, 2007, Whitehead appealed both the District Court’s Order Granting
Bowen’s Motion for Summary Judgment and the subsequent Order Denying Whitehead’s Motion
to Amend Alter or Vacate.2
II. STANDARD OF REVIEW
2
Under Rule 4(1)(A) of the Federal Rules of Appellate Procedure, W hitehead was required to file his appeal
within thirty days from the entry of judgment. The district court granted Defendant Bowen’s Motion for Summary
Judgment on April 5, 2007, and W hitehead did not appeal that decision until November 2, 2007 — well beyond the
thirty-day time limit. W hile a properly filed motion under Rule 59(e) will toll the period for filing a notice of appeal,
Fed. R. App. P. 4(a)(4)(A)(iv), W hitehead did not file his Motion to Alter, Amend, or Vacate under Rule 59(e)
within ten days of the order granting summary judgment as required by Rule 59(e). The record indicates that he
requested an extension of time to file the motion, but the magistrate did not rule on that motion and ultimately found
it moot. At any rate, we previously have held that the time limit for filing under Rule 59(e) is an affirmative defense
to an untimely motion; the party opposing the motion must raise the affirmative defense before the court resolves the
motion on its merits or the defense will be forfeited, and the untimely motion will still serve to toll the period for
filing a notice of appeal. See Nat’l Ecological Found. v. Alexander, 496 F.3d 466, 476 (6th Cir. 2007). Because
Bowen did not argue below that W hitehead’s 59(e) M otion was untimely, we have the authority to entertain his
appeal of the magistrate’s order granting the motion for summary judgment. See id.
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We review de novo a district court’s decision granting summary judgment. Smith Wholesale
Co., Inc., v. R.J. Reynolds Tobacco, Inc., 477 F.3d 854, 861 (6th Cir. 2007) (citing Kessler v. Visteon
Corp., 448 F.3d 326, 329 (6th Cir. 2006)). Summary judgment is proper “if the pleadings, the
discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as
to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P
56(c). We must view the evidence in the light most favorable to the nonmoving party. Matshushita
Elec. Insus. Co. v. Zenith Radio Corp., 475 U.S. 574, 589 (1986).
To withstand summary judgment, the nonmovant must present sufficient evidence to create
a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A mere
scintilla of evidence is insufficient; “there must be evidence on which the jury could reasonably find
for the [nonmovant].” Anderson, 477 U.S. at 252. A party opposing a properly supported motion
for summary judgment may not rest upon the mere allegations or denials of his pleadings, but must
set forth specific facts showing that there is a genuine issue for trial. Id. at 248.
“We typically review the denial of a motion to reconsider using the ‘abuse of discretion’
standard, ‘but where reconsideration of summary judgment was sought, . . . a de novo review’ is
appropriate.” Sommers v. Davis, 317 F.3d 686, 691 (6th Cir. 2003) (citing United States v. $515,
060.42, 152 F.3d 491, 497 (6th Cir. 1998)). A district court may grant a Rule 59(e) motion if there
exists a clear error of law, newly discovered evidence, or an intervening change in controlling law,
or to prevent manifest injustice. See Gencorp, Inc. v. American Int’l Underwriters, 178 F.3d 804,
834 (6th Cir. 1999).
III. ANALYSIS
A. Summary judgment.
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In his unverified complaint, Whitehead alleged that Bowen “detained, seized, and arrested”
him, and in that process, Bowen injured him. With his motion for summary judgment, Bowen filed
an affidavit stating that he was “not the officer that arrested Mr. James Whitehead on March 17,
2005, as alleged in his Complaint,” and further, that at 9:15 AM on the morning in question he was
actually in court, testifying in an unrelated matter. Bowen corroborated these sworn statements by
attaching to his affidavit Whitehead’s arrest and jail records, which clearly establish that the
arresting officer was the Chief of Police, not Officer Bowen, and the docket sheet from Bullitt
District Court showing that Bowen did in fact testify the morning of March 17. With these
submissions, Bowen provided affidavit documentation sufficient to rebut the claims made in
Whitehead’s complaint, thereby shifting the burden to Whitehead to show that there remained a
genuine issue of material fact for trial. See Celotex, 477 U.S. at 322.
To meet this burden, Whitehead could “not rely merely on allegations or denials in [his] own
pleadings; rather, [his] response must — by affidavits or as otherwise provided in [Rule 56] — set
out specific facts showing a genuine issue for trial.” Fed. R. Civ. P. 56 (e)(2); see also Anderson,
477 U.S. at 259 (nonmovant “may not . . . rest on mere allegations or denials of his pleadings”);
Miller v. Lorain County Bd. of Elections, 141 F.3d 252, 256 (6th Cir. 1998) (nonmovant “must set
forth through competent and material evidence specific facts showing that there is a genuine issue
for trial”). Despite the clear requirements of Rule 56 and the case law, Whitehead’s response to
Bowen’s motion for summary judgment — as the district court correctly observed — “relie[d] solely
on the allegations in the complaint that [Bowen] detained, seized and arrested [Whitehead] on March
17, 2005, and is responsible for the events alleged in the complaint.” Whitehead, 2007 U.S. Dist.
LEXIS 25468 at *2. Whitehead argued that his complaint, by itself, created a genuine issue of
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material fact, and he did not support the allegations made in his complaint with affidavits or any
other evidence sufficient under Rule 56 to withstand a motion for summary judgment. Id. In short,
the record before the district court provided no evidence sufficient to demonstrate any genuine issue
of material fact.
On appeal, Whitehead again argues that he was arrested and injured by Bowen. But now, for
the first time, Whitehead argues that there were two officers on the scene — the Chief and Bowen
— and while the Chief may have been the arresting officer for records’ purposes, Bowen assisted
the Chief in making the arrest and injured Whitehead while doing so. Furthermore, Whitehead
argues, he was arrested at 8:40 AM , so Bowen could have participated in his arrest prior to appearing
in court to testify at 9:15 AM . Whitehead argues that summary judgment was not proper because
Bowen’s affidavit and other documentation do not conclusively prove that this version of events is
incorrect. Essentially, Whitehead argues that because Bowen’s appellate brief does not specifically
deny Whitehead’s new version of events, but instead focuses on the facts and arguments before the
district court at the time summary judgment was entered, this court should draw the inferences that
Whitehead contends are “warranted.”
Had Whitehead presented this new version of events to the district court in affidavit or
otherwise proper form, he might well have survived Bowen’s motion for summary judgment. But
this version of the facts was never presented to the district court, let alone in proper form. Nothing
in the record before the district court ever hinted at the “fact” on which Whitehead’s brief on appeal
now relies — that there were two officers at the scene. We will not reverse a grant of summary
judgment on the strength of a negative inference from Bowen’s affidavit and “facts” not on the
record before the district court, even if Bowen does not specifically deny them in his appellate brief.
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Nor are we persuaded by Whitehead’s argument that the district court prematurely granted
Bowen’s Motion for Summary Judgment. To be sure, prior to entry of summary judgment, the
parties must ordinarily be afforded adequate time for discovery. Plott v. General Motors Corp., 71
F.3d 1190, 1195 (6th Cir. 1995); Vaughn v. U.S. Small Business Admin., 65 F.3d 1322, 1325 n.1 (6th
Cir. 1995) (citations omitted). However, as we have previously stated,
in order to preserve the argument that the grant of summary judgment was too hasty
and precluded necessary discovery, the appellant must have complied with the
strictures of [FED . R. CIV . P. 56(f)], under which the district court may defer
summary judgment, pending discovery, if the non-movant submits affidavits stating
that the party cannot for reasons stated present by affidavit facts essential to justify
the party’s opposition.
Plott, 71 F.3d at 1196 (internal quotations omitted). “In other words, if the appellant has not filed
either a Rule 56(f) affidavit or a motion that gives the district court a chance to rule on the need for
additional discovery, this court will not normally address whether there was adequate time for
discovery.” Id. (citing Klepper v. First Am. Bank, 916 F.2d 337, 343 (6th Cir. 1990)).
Whitehead made no effort to comply with Rule 56(f). Instead, he simply complained in his
Memorandum in Response to Bowen’s Motion for Summary Judgment that he was “at least entitled
to depose Officer Bowen to determine his whereabouts that morning, to depose individuals who were
also present at Plaintiff’s arrest and to conduct discovery to determine whether Officer Bowen was
on his way to Bullitt District Court when he arrested the Plaintiff.” It is worth noting that even in
his description of the discovery he was “entitled” to pursue, Whitehead gave no hint at the “fact” that
he proffers on appeal, namely, that Bowen was not the only officer on the scene when Whitehead
was arrested. More importantly, counsel’s argument is not a substitute for the affidavit required by
Rule 56(f), and in any event, Bowen did not move for summary judgment until ten months after
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Whitehead filed this action. During that time Whitehead had ample opportunity to begin discovery;
indeed, Bowen’s timely filed Answer put Whitehead on notice that Bowen denied that he was the
officer who arrested and injured Whitehead, and the record reflects no impediment whatsoever to
Whitehead’s undertaking the necessary discovery prior to the filing of the summary judgment
motion. He failed to do so at his own peril.
We find no error in the district court’s entering summary judgment in favor of Bowen.
B. Whitehead’s Rule 59(e) Motion
Whitehead contends that the district court erred in concluding that he had failed to create a
genuine issue of material fact. According to Whitehead, both his unsworn allegations in the
complaint — which he says were “direct evidence” that the district court was bound to accept as true
for purposes of the summary judgment motion — and his post-judgment affidavit detailing how
Officer Bowen had detained, seized, and arrested him were sufficient to create that factual issue, and
required that the district court vacate the order granting summary judgment. We disagree.
A motion under Rule 59(e) does not simply provide an opportunity to reargue a case, and it
must be supported either by a showing that the district court made an error of law or by newly
discovered evidence. Sault Ste Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th
Cir. 1998); see also Roger Miller Music, Inc. v. Sony/ATV Publishing, LLC, 477 F.3d 383, 395 (6th
Cir. 2007) (“a motion under Rule 59(e) must either clearly establish a manifest error of law or must
present newly discovered evidence”). Even if Whitehead’s affidavit were sufficient to create a
genuine issue of material fact, it merely set forth his own account of the events surrounding his
arrest, and was, at best, newly submitted evidence, not newly discovered evidence. And Whitehead’s
insistence that his unsworn allegations in the complaint were “direct evidence” that the district court
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was bound to accept as true for purposes of the summary judgment motion is entirely without legal
support. Therefore, we find no error in the district court’s refusing to vacate its earlier grant of
summary judgment.
C. Leave to Amend
Whitehead also claims that if Bowen was not the officer who arrested and injured him, then
Whitehead was entitled to amend his complaint to name the correct officer. However, Whitehead
never attempted to amend his complaint in the district court, and we decline to consider the issue for
the first time on appeal.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
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