United States Court of Appeals,
Fifth Circuit.
No. 96-40583
Summary Calendar.
Frank MILLAR, Plaintiff-Appellant,
v.
Scott HOUGHTON, Trooper, et al., Defendants,
Scott Houghton, Trooper; Fnu Garrett, Trooper; Pat Golden,
Officer, Defendants-Appellees.
June 24, 1997.
Appeal from the United States District Court for the Eastern
District of Texas.
Before WISDOM, EDITH H. JONES and BENAVIDES, Circuit Judges.
WISDOM, Circuit Judge:
The plaintiff, Frank Millar, brought this 42 U.S.C. § 1983
action against police officers Scott Houghton, Charles Garrett, Pat
Golden, and Curtis Amyx alleging wrongful arrest, excessive force
used during the arrest, and state law claims of assault, battery,
and intentional infliction of emotional distress.
The following facts are not disputed. Around 10:00 p.m. on
an evening in January 1993, Millar and his father drove to Millar's
laundromat in Sanger, Texas. Upon arriving, Millar noticed Texas
State Trooper Houghton engaged in a routine traffic stop close to
the rear of the building. While his father went inside, Millar
watched Houghton from the rear of the building. The traffic stop
escalated into a search of the vehicle. Millar continued to watch
and called his wife with a walkie-talkie type device.
1
Officer Golden arrived during Houghton's questioning of the
driver, and Houghton informed him that someone was watching from
behind the bushes near the building. Alerted by the noise of the
walkie-talkie, both Golden and Houghton shone their flashlights
toward Millar. As Houghton and Golden began approaching Millar,
Millar began backing up and threw the case of the walkie-talkie to
the ground, but he continued to hold the device in his hand.
At this point the parties' recollections diverge. According
to Houghton, Millar refused all commands to stop, was holding the
device in one hand, and had the other hand concealed in his pocket,
prompting Houghton and Garrett to display their guns. According to
Millar, he did not hear any commands and never put his hands in his
pockets. Millar contends that he had both hands in the air, and
that he turned to place them on the building, when the officers
approached and began striking him. According to Houghton, the
officers simply wanted to frisk him for weapons, but Millar
provoked the officers to physically position him by refusing all
commands. A scuffle broke out and Millar landed on the ground near
an air conditioner compressor.
At this time, Millar's father exited the laundromat, and
officer Garrett and other officers arrived. Millar's wife and
mother arrived shortly thereafter. Houghton, Golden, and Garrett
attempted to bring Millar to his feet, but he resisted by clinging
to the compressor. The officers then used force to bring Millar to
his feet and restrain him. Eventually, he was handcuffed and taken
to an emergency room.
2
Early in the case, defendants Golden and Amyx filed a joint
motion to dismiss and/or for summary judgment, arguing that
Millar's claims could not defeat a defense of qualified immunity
and that there was no genuine issue of fact to support a claim of
wrongful arrest, excessive force, or intentional infliction of
emotional distress against Golden or Amyx. The district court
granted summary judgment in favor of defendant Amyx, but denied the
motion for Golden. No one contests the summary judgment dismissing
Amyx. Defendants Houghton and Garrett jointly filed a similar
motion for summary judgment sometime later, arguing additionally
that the evidence did not sufficiently support the significant
injury element of Millar's claim of excessive force. The district
court found that, even if the plaintiff were required to show
significant injury as an element of his excessive force claim,
there was enough evidence of significant injury to present the
issue to a jury. Furthermore, the court found sufficient evidence
to raise a dispute regarding whether the force used was excessive.
Following the denial of defendants' motions for summary
judgment, the parties took the deposition of Dr. Gary Watts, a
psychiatrist who treated Millar three times in the years following
the incident. Dr. Watts stated that Millar had a pre-existing
paranoid delusional condition, particularly with law enforcement
agencies. According to Dr. Watts, Millar believed that police
officers and others were conspiring to harm him. Millar
experienced anxiety whenever seeing a police officer and would be
curious and highly suspicious in the presence of an officer. Dr.
3
Watts testified that this condition could have contributed to
Millar's resistance to the defendants' approach and commands.
Soon after the deposition, Millar's attorney filed a motion to
withdraw as counsel. Millar's attorney attached a copy of the
deposition to the motion and stated that he had discussed the
status of the case with Millar and that Millar had discharged him.
Millar's attorney further stated in his motion that, given Dr.
Watts' testimony, he could no longer represent Millar in good
faith. No counsel was substituted in the motion, but the motion
and its certificate of service indicate that Millar was forwarded
a copy of both the motion and Dr. Watts' deposition. The district
court granted the motion to withdraw. Also, the district court, on
its own motion, and without giving notice to Millar, vacated its
prior orders denying summary judgment and granted summary judgment
in favor of all defendants. The district court then issued a final
judgment dismissing the case with prejudice. In vacating its prior
orders and granting summary judgment against Millar, the court
stated:
On the basis of Mr. Millar's affidavit, the Court has
previously denied Defendants' motion for summary judgment.
Having reexamined the Defendants' motion in light of the
information regarding Millar's mental condition, the Court
finds Mr. Millar's affidavit to be unreliable and insufficient
to create a fact issue in this case.
With new counsel, Millar appeals the district court's grant of
summary judgment and the dismissal of his case. Millar contends
that the district court erred in reversing its prior denial of
summary judgment based on new evidence without giving Millar notice
or an opportunity to respond. We agree.
4
Under Fed.R.Civ.P. 56(c), a party must be served with a motion
for summary judgment at least 10 days before a court grants the
motion against him. Similarly, a party must be given at least 10
days notice before a court grants summary judgment sua sponte.1
This requirement places a party on notice that he is in jeopardy of
having his case dismissed and affords him the opportunity to put
forth evidence to show precisely how he intends to prove his case
at trial.2
Millar argues that the district court improperly granted
summary judgment sua sponte without giving him proper notice under
Rule 56(c). In this case, however, the district court did not
grant summary judgment sua sponte. The court reconsidered and
vacated its prior denial of summary judgment.
Houghton and Garrett argue that a court retains jurisdiction
over a denial of summary judgment and may reverse its decision at
any time without giving notice. In support of their contention,
they cite Trustees of Sabine Area Carpenter's Health & Welfare Fund
v. Don Lightfoot Home Builder, Inc.,3 and McKethan v. Texas Farm
Bureau.4 These cases, as well as Lavespere v. Niagara Machine and
Tool Works,5 hold that a denial of summary judgment is an
1
N.L. Industries, Inc. v. GHR Energy Corp., 940 F.2d 957, 965
(5th Cir.1991).
2
Id.,; accord, Stella v. Town of Tewksbury, 4 F.3d 53, 55
(1st Cir.1993).
3
704 F.2d 822, 828 (5th Cir.1983).
4
996 F.2d 734, 738 n. 6 (5th Cir.1993).
5
910 F.2d 167, 184-85 (5th Cir.1990).
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interlocutory order, which the court may reconsider and reverse any
time before entering final judgment. These cases do not, however,
decide whether the parties need to receive notice, or whether a
party should be given an opportunity to respond to new evidence
upon which the court bases its decision to vacate and reverse its
prior denial of summary judgment.
In Bon Air Hotel v. Time,6 this court reviewed the district
court's reversal of a prior denial of summary judgment. In Bon Air
Hotel, the judge who denied summary judgment retired, and his
successor requested comments on whether the court had authority to
reconsider and reverse the prior order denying summary judgment.
After receiving comments from both parties, the court vacated the
prior order and entered summary judgment. This court, referring to
the notice requirements of Rule 56(c), affirmed the summary
judgment, noting that the parties had received proper notice and
were afforded an opportunity to present evidence demonstrating an
issue of material fact.7
Bon Air Hotel and the language of Rule 56(c) indicate that an
adverse party must be given an opportunity to respond to a motion
for a summary judgment and the evidence upon which the motion is
based. Even in the cases cited by the appellees, the losing
parties had the opportunity to respond before judgment was rendered
6
426 F.2d 858 (5th Cir.1970).
7
Id. at 862-63.
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against them.8 Accordingly, we hold that, when a court is
considering vacating and reversing a prior denial of summary
judgment on the basis of newly presented evidence, the court must
give the adverse party notice and an opportunity to respond to such
evidence. This requirement will provide the party an opportunity
to refute the evidence and demonstrate how he intends to prove his
case at trial.
Appellee Golden argues that, because it was Millar's own
attorney who submitted the deposition to the court, Millar was not
entitled to notice or an opportunity to respond. Golden reasons
that the actions of Millar's withdrawing attorney were Millar's
8
In Trustees of Sabine, the defendants, on the day of trial,
orally renewed their previously denied motion for summary judgment
on the same grounds previously presented to the court. The
plaintiffs did not object, and argued the motion orally. After
argument, the district court vacated its prior denial of summary
judgment and granted summary judgment. We found that the district
court's action was consistent with the policy of 56(c).
[Rule 56(c) ] is intended to give the opposing party
opportunity to prepare responsive pleadings and counter
affidavits. The trustees were not denied that
opportunity. Home Builders renewed motion for summary
judgment was based on the same ground it had urged
previously.... The trustees had already filed a written
response to this motion. Although they did not submit
affidavits or additional depositions, they had the
opportunity to do so.
Trustees of Sabine, 704 F.2d at 828 (citation and quotation
omitted, emphasis added).
In McKethan, a previously denied summary judgment was
granted after a trial on the merits, and thus after the
parties had submitted all their evidence. McKethan, 996 F.2d
at 738.
In Lavespere, the plaintiff filed a response to the
renewed motion for summary judgment. Lavespere, 910 F.2d at
171.
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actions, and thus Millar needed no opportunity to respond to the
deposition, which, in effect, he himself presented to the court.
Golden's argument is without merit. Millar's attorney had already
been discharged, and we have found no authority suggesting that the
actions of a discharged attorney when filing a motion to withdraw
should be considered the actions of the party.
Accordingly, we VACATE the district court's order dismissing
the plaintiff's case against defendants Golden, Houghton, and
Garrett; we VACATE the district court's order vacating its prior
order denying summary judgment and granting summary judgment in
favor of defendants Golden, Houghton, and Garrett; and we REMAND
to the district court for further proceedings consistent with this
opinion.
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