Freeman v. County of Bexar

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________

No. 95-50188
_______________________

LILLIAN FREEMAN,

Plaintiff-Appellant,

versus

COUNTY OF BEXAR, ET AL.,

Defendants,

JOHN JENNINGS, Individually and in his official capacity;
GEORGE SAIDLER, Individually and in his official capacity;

Defendants-Appellees.

************************************

LILLIAN FREEMAN,
Plaintiff-Appellant,

versus

CITY OF SAN ANTONIO, ET AL.,

Defendants,

JOHN JENNINGS, Individually and in his official capacity;
GEORGE SAIDLER, Individually and in his official capacity;

Defendants-Appellees.
_________________________________________________________________

Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________
 May 29, 1998

Before JONES, SMITH, and STEWART, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Appellant Lillian Freeman appeals the district court’s

grant of summary judgment in favor of the appellees in her 42

U.S.C. § 1983 civil action. For the foregoing reasons, we reverse

and remand to the district court.

FACTUAL BACKGROUND

Appellant Freeman was arrested twice by the San Antonio

Police Department for armed robberies which occurred June 4, 1991

and July 10, 1991 at two different San Antonio Credit Union

(“SACU”) branches. The police first arrested Freeman in July, 1991

after receiving an anonymous tip from one of her co-workers who

claimed that the photo displayed on a local “Crime Stoppers”

program resembled Freeman. Appellees Detective George Saidler and

Officer John Jennings investigated the robberies on behalf of the

San Antonio Police Department. Because both SACUs were national

banks, agents from the Federal Bureau of Investigation were also

investigating the crimes.

The FBI investigation revealed that Freeman was not

involved in the robberies. In fact, two of the bank tellers who

were robbed on June 4 could not identify Freeman in a photo array

conducted by the FBI. However, in spite of having knowledge of

this information from the FBI, Saidler and Jennings continued to

investigate Freeman. Saidler obtained what he asserts was an

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identification of Freeman from an eyewitness to the first robbery

who had earlier been unable to identify her for the FBI. In his

deposition for this case, however, Saidler admitted that witness

Joy King did not make a positive identification. Detective Saidler

also conducted a photo array before a group of people at Freeman’s

former place of employment. When comparing the bank surveillance

camera photo with a photo of Freeman in her personnel file,

employees expressed doubt as to whether the bank’s photo was

Freeman. Nevertheless, Detective Saidler wrote statements for the

witnesses to sign indicating that they positively identified

Freeman as the robber. None of the co-employees corrected or

attempted to correct the statements before signing them.

Officer Jennings met with two tellers from the second

SACU that had been robbed and showed them a surveillance photo

taken in the first robbery. Jennings informed the witnesses that

the person in the surveillance photo was Lillian Freeman. One of

the witnesses identified the person in the surveillance photo as

the person who had robbed her. Jennings took this to be a positive

identification of Freeman.

Jennings and Saidler arrested Freeman a second time on

October 10, 1991 in spite of FBI warnings that there was

insufficient probable cause to arrest her for the two robberies.

Subsequent to her arrest, a third robbery occurred in late

November. Another woman, Carolyn Yvonne Butler, was federally

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indicted for all three robberies and was convicted for the crimes

in April, 1992.

In spite of Butler’s arrest and conviction, Freeman was

prosecuted in the state system until several weeks after Butler’s

conviction. Eventually, the Bexar County District Attorney filed

a motion to dismiss charges against Freeman due to insufficient

evidence.

Freeman filed suit in state court against Bexar County,

the City of San Antonio, and a host of municipal employees in their

individual and official capacities. The gist of Freeman’s many

claims was that she had been arrested without probable cause on two

occasions for the two robberies. Freeman also alleged that the

defendants had acted maliciously, willfully, and with specific

intent to deprive her of her federal constitutional and state law

rights. The case was removed to federal court, and pretrial

proceedings were assigned to a magistrate judge.

In an exhaustive memorandum, the magistrate judge

recommended that the defendants’ several motions for judgment as a

matter of law be granted. These included motions for judgment as

a matter of law from Saidler and Jennings predicated on qualified

immunity. In making her ruling, the magistrate judge held

inadmissible the affidavit of Freeman’s expert, Ray Hildebrand, a

former San Antonio police officer, because it consisted almost

entirely of legal conclusions unsupported by any facts and did not

state which policies and procedures the officers violated.

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 Freeman, in response, submitted motions to compel

discovery and for submission of additional evidence and timely

objected to the magistrate judge’s recommendation. She also filed

a supplemental affidavit of her expert Hildebrand. The defendants

opposed these efforts.

On February 16, 1995, the district court filed a

memorandum opinion accepting the magistrate judge’s recommendation.

With respect to the supplemental affidavit of Hildebrand, the

district court stated:

Plaintiff attempts to support much of the rest of
her objections with a supplemental affidavit of her
expert, Ray Hildebrand. The Magistrate Judge concluded
that his affidavit was not proper summary judgment proof
because it consisted almost exclusively of legal
conclusions unsupported by any facts. Mr. Hildebrand has
fleshed out his supplemental affidavit considerably,
analyzing each step in the investigative process taken by
each officer and concluding how, in his opinion, that
conduct violated City policies or fell short of proper
investigative techniques. None of this, however, was
presented to the Magistrate Judge. Although 28 U.S.C. §
631 [sic] provides for de novo review by the district
court if timely objections are filed, it does not allow
the parties to raise at the district court stage new
evidence, argument, and issues that were not presented to
the Magistrate Judge, absent compelling reasons. Cupit
v. Whitley, 28 F.3d 532, 535 n.5 (5th Cir. 1994). The
affidavit will not be considered.

Freeman timely filed her notice of appeal. Pursuant to

a motion by Freeman, the appeal was dismissed as to all parties

except Jennings and Saidler.

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 DISCUSSION

We review a district court’s grant of judgment as a

matter of law de novo. See Topalian v. Ehrman, 954 F.2d 1125, 1131

(5th Cir.), cert. denied, 506 U.S. 825 (1992). Judgment as a

matter of law is appropriate “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to judgment

as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986).

Freeman asserts that, in refusing to consider the

supplemental affidavit of her expert, Hildebrand, the district

court deprived her of a ruling by an Article III judge on her case

and, alternatively, abused his discretion. We do not reach the

constitutional question as it is posed in this case because the

district court mistook his authority to consider additional

evidence. Freeman correctly cites 28 U.S.C. § 636(b)(1) to support

her argument that the district court chould have accepted the

supplemental affidavit:

A judge of the court shall make a de novo determination
of those portions of the report or specified proposed
findings or recommendations to which objection is made.
A judge of the court may accept, reject, or modify, in
whole or in part, the findings or recommendations made by
the magistrate. The judge may also receive further
evidence or recommit the matter to the magistrate with
instructions.

28 U.S.C. § 636(b)(1).

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 Two portions of the statute are relevant here. First,

the district court makes a de novo determination upon those aspects

of the magistrate judge’s report to which objection has been made.

Second, the court “may receive further evidence or recommit the

matter to the magistrate with instructions.” These phrases are

carefully drafted to maximize the district court’s authority to

review and reconsider the magistrate judge’s decision on an

objected-to finding or recommendation. See generally 12 CHARLES ALAN

WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 3076.8 (Supp.

1997).

FED. R. CIV. P. 72(b) implements and reflects the breadth

of statutory discretion by providing:

(b) Dispositive Motions and Prisoner Petitions.

* * *

The district judge to whom the case is assigned shall
make a de novo determination upon the record, or after
additional evidence, of any portion of the magistrate
judge’s disposition to which specific written objection
has been made in accordance with this rule. The district
judge may accept, reject, or modify the recommended
decision, receive further evidence, or recommit the
matter to the magistrate judge with instructions.

Circuit courts differ on whether de novo review

presupposes that, for purposes of judicial economy and efficiency,

the record compiled before the magistrate judge is ordinarily

conclusive; or whether de novo review entails consideration of an

issue as if it had not been previously decided.”1 In the latter

1
Compare Paterson-Leitch v. Mass. Mut. Wholesale Elec. Co.,
840 F.2d 985, 990-91 (1st Cir. 1988) (objector to magistrate

7
case, the Fourth Circuit permits parties who object to a magistrate

judge’s report to raise any new evidence or arguments they can

muster before the district court.2 In these lines of authority

clash the goals of maintaining procedural predictability and

preserving Article III authority. There is no doubt that district

courts may, both constitutionally and by statute, assign magistrate

judges to work on dispositive motions in a case, but the Article

III judge must retain final decisionmaking authority. See United

States v. Raddatz, 447 U.S. 667, 681-82 (1980); United States v.

Dees, 125 F.3d 261, 268-69 (5th Cir. 1997), cert. denied, ____ U.S.

____, 118 S. Ct. 1174 (1998).

This court, contrary to the district court’s view, has

issued only a limited ruling on the meaning of de novo review. In

Cupit v. Whitley, it was held that a party who objects to the

magistrate judge’s report waives legal arguments not made in the

first instance before the magistrate judge. See Cupit v. Whitley,

28 F.3d 532, 535 (5th Cir. 1994), cert. denied, 513 U.S. 1163

(1995). Cupit was a § 2254 habeas case arising from a murder

conviction. This court’s waiver holding prevented the state from

raising in the district court the legal defenses of procedural

judge’s report is not “entitled as of right to de novo review by
the judge of an argument [third-party beneficiary] never seasonably
raised before the magistrate”) with United States v. George, 971
F.2d 1113, 1118 (4th Cir. 1992) (“the party entitled to de novo
review must be permitted to raise before the [district] court any
argument as to that issue that it could have raised before the
magistrate”).
2
See George, 971 F.2d at 1118.

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default and failure to exhaust that it did not urge before the

magistrate judge.

Cupit did not deal with the situation presented here: an

attempt to amplify and add factual substance to the expert opinion

affidavit ruled inadmissibly conclusory by the magistrate judge.

Indeed, in a footnote supporting the waiver holding, Cupit cites

one case concerning rules of appellate waiver3 and one case in

which a court prevented an entirely new claim for recovery from

being raised for the first time in objection to the magistrate

judge’s report.4 A third supporting citation notes a district

court’s general holding that despite the court’s de novo review

power, the Magistrate Judges Act “does not allow the parties to

raise at the district court stage new evidence, argument, and

issues that were not presented to the Magistrate Judge -- ‘absent

compelling reasons.’”5

This last citation cannot mean much in the context of

Cupit or as precedent for this circuit. First, if Cupit intended

to establish a “compelling reasons” test for any purpose, normally

the court would have done so in the text of the opinion rather than

in an obscure footnote reference. Second, Cupit never mentions or

applies that test to the state’s newly raised defenses. That is,

3
See Cupit, 28 F.3d at 535 n.5 (citing Long v. McCotter, 792
F.2d 1338 (5th Cir. 1986)).
4
See id. (citing Paterson-Leitch, 840 F.2d at 990-91).
5
Id. (citing Anna Ready Mix, Inc. v. N.E. Pierson Constr. Co.,
Inc., 747 F.Supp. 1299, 1302-03 (S.D. Ill. 1990)).

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if the court believed compelling reasons could or could not be

given for the state’s delay in raising the defenses of exhaustion

and procedural bar, the court would have said so. Third, because

Cupit treats only legal issues, not evidentiary issues, its waiver

holding -- irrespective of any “compelling reasons” gloss -- cannot

apply beyond its narrow compass. Fourth, if Cupit attempted sub

silentio to imply that waiver doctrines also apply to challenges to

a magistrate judge’s evidentiary findings or sufficiency of

evidence findings, Cupit would conflict with the express authority

conferred on the district court by statute and rule to “receive

further evidence.” 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b).

Cupit holds only that waiver may bar a party from raising new legal

objections to the district court.

Shorn of its mistaken reliance on Cupit, the district

court’s decision to disregard Hildebrand’s supplemental affidavit

is insupportable. At least, the statute’s authority for the court

“to receive further evidence” in the course of de novo review of a

magistrate judge’s decision requires that discretion must be

exercised. The court exercised no such discretion here. We must

therefore describe the test for such exercise of discretion by the

district court confronted with an objection to magistrate judge

evidentiary findings and an offer of new or amplified evidence.

It is unnecessary to go as far as the Fourth Circuit in

George and demand that de novo review treats an objected-to

magistrate judge finding or recommendation as if it had never been

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issued. This view appears inconsistent with § 636(b)(1) insofar as

it transforms a permissive authority to receive new evidence into

an arguable mandate. Raddatz indeed emphasizes -- as this court

has done6 -- the district court’s obligation to review de novo the

actual evidence on objected-to findings, but the district court

should not be compelled to ignore that the parties had a full and

fair opportunity to present their best evidence to the magistrate

judge.

While we do not fully agree with the George approach, it

is clear that the district court has wide discretion to consider

and reconsider the magistrate judge’s recommendation. In the

course of performing its open-ended review, the district court need

not reject newly-proffered evidence simply because it was not

presented to the magistrate judge. Litigants may not, however, use

the magistrate judge as a mere sounding-board for the sufficiency

of the evidence.

The best description of the district court’s discretion

is that it should be at least as broad as that conferred on the

district court to determine motions for reconsideration of its own

rulings. Our court carefully explained the scope of such

discretion in Lavespere v. Niagara Mach. & Tool Works, Inc., 910

F.2d 167 (5th Cir. 1990). Lavespere enunciated the considerations

applicable to motions to alter or amend a judgment under FED. R.

6
See, e.g., Calderon v. Waco Lighthouse for the Blind, 630
F.2d 352, 355-56 (5th Cir. 1980); United States v. Marshall, 609
F.2d 152, 155 (5th Cir. 1980).

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CIV. P. 59(e), i.e., those served within ten days of the rendition

of judgment:7

That discretion, of course, is not limitless. In any
case in which a party seeks to upset a summary judgment
on the basis of evidence she failed to introduce on time,
two important judicial imperatives clash: the need to
bring litigation to an end and the need to render just
decisions on the basis of all the facts. The task of the
district court in such a case is to strike the proper
balance between these competing interests. In order to
do this, the court should consider, among other things,
the reasons for the moving party’s default, the
importance of the omitted evidence to the moving party’s
case, whether the evidence was available to the non-
movant before she responded to the summary judgment
motion, and the likelihood that the nonmoving party will
suffer unfair prejudice if the case is reopened.

Id. at 174 (citations omitted).

The fit between Rule 59(e) motions and de novo review of

objections to magistrate judge recommendations is not perfect

because somewhat different considerations attach to a court’s

review of its own work and its review of the work of its adjunct.

But the general nature of the inquiry is the same, and this court’s

review of the exercise of that discretion, when it is exercised,

must be generous.

Because the district court here mistakenly concluded that

he had no discretion to consider additional evidence, we must

7
Lavespere articulated different standards, founded on FED. R.
CIV. P. 60(b), if the “motion to reconsider” is served more than 10
days after the order complained of. Rule 59(e) furnishes a better
model here, given the court’s broad authority with respect to
magistrate judge decisions. (As an irrelevant aside, we note that
after Lavespere was issued, rule 59(e) was amended to measure the
10-day filing period according to the motion’s filing date rather
its date of service.)

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reverse and remand for his reconsideration in light of this

opinion. We note that although Hildebrand’s supplemental affidavit

paints a detailed picture of alleged violations of San Antonio

police department investigative policies, willful ignorance of

contrary FBI conclusions, and an investigation arguably slanted to

incriminate Ms. Freeman, the underlying facts contained in the

affidavit were not unknown to Saidler and Jennings. It seems

unlikely they could claim prejudice from Freeman’s attempt to

resurrect this expert testimony after it had been declared too

conclusory. The supplemental affidavit also appears crucial to

Freeman’s case against the officers. On the other hand, Freeman

stated no reason why the first Hildebrand affidavit lacked

supporting details. All of this said, we do not prognosticate the

district court’s ultimate decision.

For the foregoing reasons, the judgment of the district

court is REVERSED and the case REMANDED for further proceedings.

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