UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 96-30191
(Summary Calendar)
_________________
JESSICA MATTE DUPUIS, individually and on
behalf of Samantha Nicole Dupuis on behalf of
Mark Logan Dupuis,
Plaintiff-Appellant,
versus
JOHN TOLEDO, ET AL.,
Defendants,
JOHN TOLEDO, individually and as Police
Officer of the Town of Krotz Springs; POLICE
DEPARTMENT OF KROTZ SPRINGS; TOWN OF KROTZ
SPRINGS; MARVIN GUILLORY, Acting Chief of
Police of Krotz Springs; TITAN INDEMNITY
COMPANY; GARY SOILEAU,
Defendants-Appellants.
Appeal from the United States District Court
For the Western District of Louisiana
(94-CV-2383)
June 9, 1997
Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
*
Pursuant to Local 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opinion should not be published and is not precedent except under the limited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 Local Rule 47.5.4.
Plaintiff Jessica Matte Dupuis, proceeding on her own behalf
and that of her two minor children, appeals the jury’s verdict that
Defendants did not violate the civil rights of Adolph Dupuis IV and
were not liable under Louisiana law for his death. Plaintiffs also
appeal the district court’s exclusion of evidence regarding the
background of Defendant John Toledo and the district court’s denial
of Plaintiffs’ motion for a new trial. We affirm.
I
On the night of December 2, 1994, Adolph (“Jody”) Dupuis IV
went out with his wife Jessica in the town of Krotz Springs,
Louisiana. During the course of the evening, the couple engaged in
an argument regarding allegations of Jessica’s infidelity. At 2:00
a.m. on the morning of December 3, Jody and Jessica returned home
from Dago’s Bar, a drinking establishment run by Jody’s “uncle,”
James Kemp. Jody left the house.
Shortly thereafter, Krotz Springs Police Officer John Toledo,
who was at a 24-hour grill and service station, received a phone
call complaining that Jody was driving unsafely. Jessica had
called the police because she was worried about Jody. As Toledo
left the station, he saw Jody’s vehicle across the street and went
to investigate. After a brief discussion, Toledo escorted Jody
home.
Jessica and Jody had another argument, after which Jessica
left the house. Upon leaving, she told Jody to find her if he
wanted to speak with her. Jessica drove to the service station
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where Toledo had returned to eat. At the station, Jessica told
Toledo that she was having an argument with Jody, that Jody had
smashed furniture, and that Jody was barricaded in their house with
a shotgun. Toledo then proceeded towards his squad car to radio
for assistance.
As Toledo left the station, Jody arrived and approached
Toledo. Toledo instructed Jody to stop advancing, but Jody did
not. Toledo pulled out his pepper spray and sprayed it towards
Jody’s face. Toledo backpedaled, but Jody continued to advance.
Toledo again discharged his pepper spray in Jody’s face. Observing
that the spray had had little effect on Jody, Toledo drew his baton
while retreating. The baton was knocked from Toledo’s hand during
the struggle. As Jody struggled with Toledo, he forced Toledo to
the pavement. Toledo drew his sidearm and fired twice into Jody’s
chest. Jody died several hours later at Opelousas General
Hospital.
After trial in December 1995, the jury returned a verdict
finding no violation of Jody’s civil rights and no negligence under
Louisiana law by any of the defendants. Plaintiffs appeal.
II
Plaintiffs present four arguments on appeal: that the jury’s
verdict that Defendants did not violate Jody’s civil rights is
contrary to the weight of the evidence; that the jury’s verdict
that Defendants were not negligent under Louisiana law is contrary
to the weight of the evidence; that the district court erred in
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excluding evidence regarding Toledo’s background; and that the
district court erred in denying Plaintiffs’ motion for a new trial.
Plaintiffs first argue that the jury’s conclusions that
Defendants did not violate Jody’s civil rights and that Defendants
were not negligent under Louisiana law are contrary to the weight
of the evidence.2 Plaintiffs appear to argue that Toledo’s use of
the pepper spray, despite an acknowledged lack of training in its
use, compels a finding of excessive use of force and negligence by
Toledo.
In reviewing the sufficiency of the evidence to support a jury
verdict, we consider all of the evidence, drawing all reasonable
inferences in favor of the prevailing party. Knowlton v. Greenwood
Indep. Sch. Dist., 957 F.2d 1172, 1178 (5th Cir. 1992). We do not
reweigh the evidence; it is the jury’s province to weigh
conflicting evidence, draw inferences from the evidence, and make
credibility determinations. Id. Nor can a jury verdict be set
aside merely because a different result could have been reached;
its decision must be accepted if the record contains any competent
and substantial evidence tending fairly to support the verdict.
Id. Substantial evidence, while something less than the weight of
the evidence, is such relevant evidence as reasonable minds might
accept as adequate to support a conclusion, even if different
2
Although Plaintiffs frame their arguments as appeals of the jury’s
findings that Defendants did not violate Jody’s civil rights and were not
negligent in Jody’s death, Plaintiffs specifically contest only the jury’s
conclusions that Toledo did not use excessive force and was not negligent.
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conclusions also might be supported by the evidence. Id.
Based on this narrow standard of review, we find Plaintiffs’
challenges to the verdict without merit. Toledo testified that
Jody attacked him, that he attempted and was unable to escape, and
that he unsuccessfully attempted to subdue Jody through the use of
his pepper spray and his baton. Toledo testified that he shot Jody
as a “last resort” because he felt that his life was in danger.
Witnesses to the incident confirmed Toledo’s testimony. James
Kemp testified that at the time of the shooting Jody was bent over
Toledo, reaching for him. Bobby Edwards testified that Jody was
standing over Toledo within reaching distance at the time of the
shooting. Myra Ponthieux stated that just prior to the shooting
Jody was “going over” and was “right over” Toledo. Robert Walker
testified that Toledo was falling backwards and was in Jody’s grasp
at the time of the shooting. Walker stated that it appeared to him
that Toledo was in danger of being harmed by Jody.
In addition, an expert in police training in the use of
chemical weapons testified that Toledo used the pepper spray
properly despite his lack of training. The expert testified that
under the same circumstances he would have used the spray in the
same manner Toledo did. Based on the foregoing and drawing all
reasonable inferences in favor of Defendants, we conclude that the
record contains competent and substantial evidence tending fairly
to support the jury’s verdict that Defendants did not violate
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Jody’s civil rights and were not negligent.
Plaintiffs next argue that the district court erred in
excluding evidence regarding Toledo’s background. We review a
district court’s evidentiary rulings for abuse of discretion.
Herrington v. Hiller, 883 F.2d 411, 414 (5th Cir. 1989). We will
not overturn evidentiary rulings unless substantial prejudice
results. Smith v. Wal-Mart Stores (No. 471), 891 F.2d 1177, 1180
(5th Cir. 1990). The party asserting error has the burden of
proving that the error prejudiced a substantial right of that
party. Id.
Plaintiffs sought to introduce Toledo’s former employment and
criminal records showing that Toledo had received speeding tickets,
had issued insufficient funds checks, and had been cited for
hunting at night. The district court refused to admit the records,
finding that they did not demonstrate a likelihood that Toledo
would commit a constitutional violation or that he had a propensity
for violence.3 The court also excluded the records under FED. R.
3
Specifically, the district court found:
While I’m here, I’m putting a ruling on the record for excluding
some of the information on, I think, some violations of the))of the
officer, Mr. Toledo, which I had excluded during the testimony that
the prior records of Officer Toledo do not show any prior violence
or aggressive behavior, and although it may be relevant to show that
Officer Toledo may not have been hired, it does not show that the
policy makers and decision makers should have known of any
propensity toward violence, it wouldn’t indicate that, and the Fifth
Circuit has stated that a single hiring decision which creates a
high likelihood that a citizen’s constitutional rights would be
violated can suffice for Section 1983 liability. Here the record
does not show a high likelihood that Toledo would violate anyone’s
constitutional rights, and there’s no proximate cause between the
two, and the reasons Toledo may not have been [h]ired do not have
anything to do with the excessive force . . . .
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EVID. 403.4
Plaintiffs, relying solely on this court’s statement in Brown
v. Bryan County, Okla., 67 F.3d 1174, 1183 (5th Cir. 1995), cert.
granted, 64 U.S.L.W. 3707 (U.S. Apr. 22, 1996) (No. 95-1100),5 that
a municipality may be liable under § 1983 for a single decision
made by a final policy maker, argue that the district court’s
ruling excluding Toledo’s records improperly foreclosed them from
arguing that the other defendants were liable because they hired
Toledo, a person who “had a history of acting above the law, a law
he was sworn to uphold” and who was unfit for law enforcement work.
The records revealed that Toledo had been cited for various
non-violent offenses. As a result, the district court did not
abuse its discretion in determining that these records did not
demonstrate a likelihood that Toledo would use unconstitutionally
excessive force or that he had a propensity for violence.
Similarly, the district court did not abuse its discretion in
finding the probative value of the records on the issue of whether
Toledo violated Jody’s civil rights outweighed by Rule 403's other
considerations.
R. Vol. 14, pp.156-57.
4
Federal Rule of Evidence 403 provides:
Although relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.
5
The Supreme Court heard oral argument in Bryan County on November 5,
1996. The Court has yet to issue an opinion.
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Moreover, because substantial evidence supports the jury’s
conclusion that Toledo did not violate Jody’s constitutional
rights, no basis for liability against the other defendants exists.
See Doe v. Rains County Indep. Sch. Dist., 66 F.3d 1402, 1407 (5th
Cir. 1995) (“After finding that (1) a rights violation occurred (2)
under color of state law, only then do we ask a third and final
question: Who are the state actors responsible for the
constitutional violation?”); see also Collins v. City of Harker
Heights, Tex., 503 U.S. 115, 120, 112 S. Ct. 1061, 1066, 117 L. Ed.
2d 261 (1992) (“[P]roper analysis requires us to separate two
different issues when a § 1983 claim is asserted against a
municipality: (1) whether plaintiff’s harm was caused by a
constitutional violation, and (2) if so, whether the city is
responsible for the violation.”). Any effect the district court’s
evidentiary ruling may have had on Plaintiffs’ allegations of
municipal liability is therefore moot. See City of Los Angeles v.
Heller, 475 U.S. 796, 799, 106 S. Ct. 1571, 1573, 89 L. Ed. 2d 806
(1986) (per curiam) (“If a person has suffered no constitutional
injury at the hands of the individual police officer, the fact that
the departmental regulations might have authorized the use of
constitutionally excessive force is quite beside the point.”),
cert. denied, 476 U.S. 1154, 106 S. Ct. 2268, 90 L. Ed. 2d 712
(1986).
Plaintiffs last argue that the district court erred in denying
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their Rule 60(b)(2) motion for a new trial.6 We review a district
court’s denial of a Rule 60(b) motion for an abuse of discretion.
Government Fin. Servs. v. Peyton Place, Inc., 62 F.2d 767, 770 (5th
Cir. 1995). To succeed on a motion brought under 60(b)(2) based on
newly discovered evidence, the movant must demonstrate (1) that it
exercised due diligence in obtaining the information and (2) the
evidence is material and controlling and clearly would have
produced a different result if presented before the original
judgment. Id. at 771.
On January 18, 1996, more than one month after the verdict,
Plaintiffs filed a motion for a new trial based on their discovery
of Toledo’s military records. Plaintiffs contend that on November
2, 1995, approximately five weeks before trial, they discovered in
Toledo’s job application for the Miami Beach Police Department that
Toledo had served twenty-five days in the United States Air Force
before being discharged for an inability to handle stressful
situations. Toledo’s application for the Krotz Springs Police
Department did not indicate that Toledo had served in the military.
Plaintiffs argue that they “rel[ied] on the employment application
with the Krotz Springs Police Department” and “assumed that Officer
Toledo had not served in the military.”
6
Under Rule 60(b)(2), a court may relieve a party from a final
judgment on the basis of “newly discovered evidence which by due diligence could
not have been discovered in time to move for a new trial under Rule 59(b).”
Government Fin. Servs. v. Peyton Place, Inc., 62 F.3d 767, 770-71 (5th Cir.
1995). Rule 59(b) provides that “[a]ny motion for a new trial shall be filed no
later than 10 days after entry of the judgment.”
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The district court denied Plaintiffs’ Rule 60(b)(2) motion on
the grounds that Plaintiffs were not diligent in attempting to
obtain the records prior to trial.7 In particular, the district
court noted that Plaintiffs failed to ask Toledo in depositions or
interrogatories whether he had served in the military. Under these
circumstances, the district court did not abuse its discretion in
concluding that Plaintiffs did not exercise due diligence in
seeking to obtain Toledo’s military records. See Brown v.
Petrolite Corp., 965 F.2d 38, 50 (5th Cir. 1992) (noting that
because evidence existed at time of trial, “court was entitled to
conclude that Petrolite could have discovered it earlier by
exercising due diligence”).
AFFIRMED.
7
The district court stated:
Plaintiffs did not seek such information until the month before
trial. Although plaintiffs assert that they did not know such
records existed because Toledo failed to allude to his military
history in his previous employment applications, plaintiffs failed
to ask Toledo, in any deposition or interrogatory, if he was ever in
the military. This is not excusable neglect. It is not the
defendant’s duty to spontaneously refer to his military history;
rather, plaintiffs had the means and the ability to elicit such
information through the discovery process. Plaintiffs failed to do
such. Therefore, they began trying to obtain these records very
late in the process. They ran into difficulties because they failed
to get a court order (instead of a subpoena) as required by federal
statutory and case law. They did not obtain the records until a
month after trial.
R. Vol. 10, p.1290.
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