Sharon Elder-Keep v. Troy Aksamit , 460 F.3d 979 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-3991
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Sharon Elder-Keep, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Troy Aksamit, Individual capacity; *
Jerome Thraen, Sgt., Individual *
capacity and in their official capacities *
as Police Officers; City of Lincoln, *
*
Appellees. *
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Submitted: May 19, 2006
Filed: August 21, 2006
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Before BYE, HANSEN, and SMITH, Circuit Judges.
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SMITH, Circuit Judge.
David B. Keep sued police officers Troy Aksamit and Jerome Thraen, in their
individual and official capacities as police officers for the City of Lincoln, Nebraska
("the City"), alleging that they used excessive force against him in violation of 42
U.S.C. § 1983.1 In a summary judgment motion on the individual capacity claim, the
1
David B. Keep died on December 21, 2004, of causes unrelated to the instant
case. Despite Keep's death, his cause of action survives, as pending actions for
personal injury do not abate by death of the plaintiff under Nebraska Law. Neb. Rev.
officers asserted that qualified immunity shielded them. The district court2 granted this
motion for summary judgment after excluding two of the plaintiff's affidavits filed in
opposition to the motion. After denying several other of the plaintiff's motions, the
district court ultimately granted the police officers' second motion for summary
judgment on the official capacity claim. Sharon Elder-Keep, acting as administrator
of Keep's estate, timely filed this appeal. We affirm.
I. Background
Elder-Keep's allegations arose from an altercation between Keep and the
officers following a traffic stop. Keep, while transporting Elder-Keep to the hospital,
passed Officer Thraen of the Lincoln Police Department ("LPD"), who noticed Keep's
vehicle had no license plate. Thraen activated his patrol car's overhead lights and
pursued Keep's van for approximately 18 blocks. Thraen ordered Keep to stop, but
Keep appeared to ignore the officer, who was unaware that Keep had requested a
police escort through Elder-Keep's son, A.J.
Keep stopped at a traffic light and, as the light turned green, Thraen used his
public address system to instruct Keep to pull over to the right of the road. Instead,
Keep accelerated. Assuming that Keep was fleeing, Thraen activated his siren. Keep
apparently ignored the officer, drove through a red light, and finally stopped at the
entrance to the hospital. Thraen, still in pursuit, pulled his patrol car in front of Keep's
van.
Officer Aksamit observed Thraen, activated his overhead lights in an attempt
to stop Keep's van, and joined in pursuit of Keep. Aksamit recognized Keep as
Stat. § 25-1402 (1995). Sharon Elder-Keep, Keep's wife and administrator of his
estate, was substituted as the plaintiff in the instant action.
2
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
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someone he had seen in connection with a disturbance at a Lincoln restaurant
approximately two hours earlier. At that time, Aksamit believed Keep was intoxicated.
Aksamit saw Keep's vehicle run the stop light and then pursued the van into the
hospital parking lot where he parked his patrol car behind the van. Aksamit testified
that he never heard any radio dispatch regarding a possible medical emergency in
Keep's vehicle.
Although their accounts differ substantially,3 neither party disputes that
Aksamit grabbed Keep from behind, took him to the ground, causing the front of
Keep's body to hit the concrete, and then handcuffed Keep.
After the incident, Keep filed a § 1983 action against Thraen and Aksamit in
their individual and official capacities. Thraen and Aksamit filed a motion for
summary judgment on the individual capacity claim, alleging that they were entitled
3
The officers' version of events is as follows: Aksamit told Keep to remove his
hand from his coat pocket and get back into the van. Keep did not comply but instead
proceeded towards Aksamit and then turned and moved around the rear of the van.
Aksamit repeatedly told Keep to remove his hand from his pocket, put his hands on
his head, and lie on the ground, but Keep failed to comply with his commands.
Aksamit grabbed Keep from behind, took Keep to the ground, causing the front of
Keep's body to hit the concrete, wrestled Keep's hand out of his pocket, and placed
Keep in handcuffs. Keep had no weapon on his person. Just prior to Aksamit exiting
his vehicle and taking Keep to the ground, Thraen heard a radio dispatch regarding a
possible medical emergency in Keep's vehicle.
Elder-Keep's affidavit presents a substantially different picture. According to
Elder-Keep, Keep exited the van at the hospital, put his arms up, and called for help.
Keep's pockets were sealed shut, and he had nothing in his hands. No officer gave any
orders or directions to Keep. Elder-Keep saw Thraen exit his vehicle before Aksamit
exited his vehicle. Keep went around the van from behind and opened the passenger
door. Then, Aksamit grabbed Keep from behind, threw him to the ground, and kicked
him and hit him as he lay silent and motionless. Elder-Keep alleges that Keep suffered
a variety of physical injuries as a result of Aksamit's use of force.
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to qualified immunity. In opposition to summary judgment, plaintiff's counsel
electronically filed the purported affidavits of Sharon Elder-Keep and A.J. Elder, who
witnessed some of the evening's events.
The district court, however, did not consider the affidavits in making its
summary judgment ruling. The court ruled the affidavits inadmissible because the
electronically-filed affidavits "b[ore] no signatures or evidence of having been
executed before a notary public" and because the affidavits were "at times
contradictory with the allegations in the Amended Complaint itself." The district court
thus "disregar[ed] [the] incompetent evidence when ruling on the Defendants'
Motion."
Twenty-five days after the district court granted Thraen's and Aksamit's
summary judgment motion, plaintiff's counsel filed a motion under Rule 60 of the
Federal Rule of Civil Procedure, asking the district court to reconsider its exclusion
of the electronically-filed affidavits. Plaintiff's counsel submitted faxed copies of
purported affidavit signature pages signed by Sharon Elder-Keep and Allen Peithman,
Jr. However, discrepancies existed between the later faxed "copies" and the initial
electronically-filed signature pages. The date that Sharon Elder-Keep's signature was
notarized on her faxed affidavit signature page differed from the date that it was
purportedly notarized on the earlier, electronically-filed signature page. Plaintiff's
counsel also submitted his own affidavit, explaining that the person identified as "A.J.
Elder" in the previous electronically-filed "affidavits" of Sharon Elder-Keep and A.J.
Elder was actually "Allen Peithman, Jr." Plaintiff's counsel explained that he had no
knowledge that A.J.'s last name was actually "Peithman" until A.J. informed him after
A.J. faxed the affidavit back to him.
The district court treated Elder-Keep's motion as a motion for reconsideration,
stating that Rule 60 applies only to relief from final judgments or orders. The district
court's previous summary judgment was not a final order. According to local rules, a
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motion for reconsideration must be filed no later than ten days after the district court
files its order, unless the party demonstrates good cause for a later filing. Because
Elder-Keep's motion for reconsideration was filed 25 days after the order, the district
court considered the motion late and ruled that Elder-Keep failed to show good cause
for the delay. While Elder-Keep filed other motions, they were denied.
Thraen and Aksamit then filed a second motion for summary judgment on the
official capacity claim. Elder-Keep's response to the motion was due on Friday,
September 9, 2005. However, she filed a motion to extend the deadline on September
6, 2005, noting that her attorney had arranged depositions for September 7, 2005. She
hoped to file the depositions with the court by September 23, 2005, a week before
discovery closed in the case. Thraen and Aksamit waived any objections to the motion
to extend.
Because the district court had not yet granted the motion to extend, on
September 12, 2005, Elder-Keep filed all evidence in her possession, as well as an
"interim" index. She made reference to the depositions that were taken on September
7 and to the depositions to be taken on September 15. Thraen and Aksamit then filed
a motion to strike on September 22, 2005, arguing that some documents in Elder-
Keep's index of evidence were not identified and authenticated by affidavit. On
September 26, 2005, the district court denied Elder-Keep's motion to extend as moot.
The court concluded that it need not reconsider its denial of Elder-Keep's motion to
extend because, even if it had granted the motion, the extension would have expired
on September 23, 2005. On October 4, 2005, the district court granted the motion to
strike, stating that Elder-Keep failed to respond to the motion.4
4
The District of Nebraska docket report reveals that Elder-Keep did file an
objection to the motion to strike on October 4, 2005.
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The district court then granted the second motion for summary judgment to
Thraen and Aksamit, stating that Elder-Keep failed to prove "an unconstitutional
policy or custom . . . that in any way contributed to Keep's injuries."
II. Discussion
Elder-Keep appeals, arguing that the district court erroneously: (1) excluded the
electronically-filed affidavits; (2) denied the Rule 60 motion; (3) denied the motion
for reconsideration; (4) denied the motion to expedite deadlines and motion to extend
deadlines; (5) granted summary judgment to Thraen and Aksamit; (6) denied her
second motion to extend; and (7) denied her second motion for reconsideration and
leave to submit additional evidence.
A. Exclusion of Affidavits
Elder-Keep argues that the district court erred by excluding two electronically-
filed affidavits despite no objection from Thraen and Aksamit. She contends that the
district court's sua sponte exclusion of the affidavits was in violation of the local rules,
this court's rules, and applicable case law.
Federal Rule of Civil Procedure 56 governs summary judgment. In particular,
Rule 56(e) requires that "[s]worn or certified copies of all papers or parts thereof
referred to in an affidavit shall be attached thereto or served therewith." While Rule
56(e) only states that papers referred to in the affidavit must be "sworn," an affidavit,
by definition, is "a statement reduced to writing and the truth of which is sworn to
before someone who is authorized to administer an oath." Pfeil v. Rogers, 757 F.2d
850, 859 (7th Cir. 1985) (emphasis added).
In addition, 28 U.S.C. § 1746 mandates that the affiant declare, under penalty
of perjury, that the facts contained in the affidavit are true. Therefore, "[a]ffidavits are
admissible in summary judgment proceedings [only] if they are made under penalties
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of perjury," meaning that a district court may properly reject unsworn documents. Id.
(citing 28 U.S.C. § 1746).
Here, the affidavits lacked signatures and attestation before a notary public.
Thus, the affiants failed to execute their affidavits under penalty of perjury as
mandated by § 1746. Therefore, we hold that the district court was authorized to
exclude sua sponte such affidavits from its consideration of the first summary
judgment motion.
B. Rule 60 Motion
Elder-Keep's second argument is that the district court improperly treated her
Rule 60 motion as a motion for reconsideration. Elder-Keep contends that the court
erred because filing electronically-filed affidavits without signatures qualifies as
"mistake, inadvertence, surprise, or excusable neglect" under Rule 60. Furthermore,
she maintains that a Rule 60 motion properly applies to a motion filed in response to
a non-final order.
The Federal Rules of Civil Procedure "do not mention motions for
reconsideration." Broadway v. Norris, 193 F.3d 987, 989 (8th Cir. 1999). However,
we have determined that motions for reconsideration are "nothing more than Rule
60(b) motions when directed at non-final orders."5 Anderson v. Raymond Corp., 340
F.3d 520, 525 (8th Cir. 2003) (citing Broadway, 193 F.3d at 989). We review a district
court's denial of a motion for reconsideration for an abuse of discretion. Id.
5
The plain language of Rule 60 states that it applies to "a final judgment, order,
or proceeding." The district court "may" relieve a party from such an order when, for
example, the party demonstrates "mistake, inadvertence, surprise, or excusable
neglect" or "any other reason justifying relief from the operation of the judgment."
Fed. R. Civ. P. 60(b)(1), (6).
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In the present case, the district court had not entered a final judgment or order
when Elder-Keep filed her Rule 60 motion. The district court's grant of summary
judgment to Thraen and Aksamit based on qualified immunity in their individual
capacities did not resolve whether liability existed in their official capacities. See
Erickson v. Holloway, 77 F.3d 1078, 1081 (8th Cir. 1996) (holding that no "final
order" existed where the district court granted summary judgment to officials in their
individual capacities based on qualified immunity). Because this grant of summary
judgment was a non-final order, the district court properly characterized Elder-Keep's
motion as a motion for reconsideration.
Under the local rules for the United States District Court for the District of
Nebraska, a party "must file a motion for reconsideration of an order no later than ten
(10) days after the court files the order, unless the party shows good cause for late
filing." NECivR 60.1(b). Here, the district court entered its non-final order on January
4, 2005. Elder-Keep did not file her motion until January 29, 2005—25 days after
entry of the court's order.
In addition, the local rules provide that motions for reconsideration are
disfavored and will ordinarily be denied unless the party demonstrates manifest error
in a prior ruling or sets forth new facts or legal authority that could not have been
brought to the court's attention previously with reasonable diligence. NECivR 60.1(c).
The district court concluded that Elder-Keep failed to demonstrate manifest error in
the prior ruling or present new facts or legal authority to the court that she could not
have previously presented with due diligence. Thus, applying the Rule 60 standard to
the non-final order, the district court essentially determined, in its discretion, that
Elder-Keep failed to show "mistake, inadvertence, surprise, or excusable neglect" or
"any other reason justifying relief" from the order. We cannot say that the district
court abused its discretion in making such a determination.
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C. Motion for Reconsideration
Elder-Keep's third argument on appeal is that the district court erred in denying
her motion for reconsideration of its previous order denying her motion for Rule 60
relief, which the district court treated as a motion for reconsideration.
Because we find that the district court did not abuse its discretion in (1) labeling
Elder-Keep's Rule 60(b) motion as a motion for reconsideration and (2) determining
that Elder-Keep failed to meet the requisite criteria under both the local rules and Rule
60 in denying the motion, we also find that the district court did not abuse its
discretion in denying Elder-Keep's subsequent motion for reconsideration of the denial
of her Rule 60 motion.
D. Motion to Expedite and Motion to Extend
Elder-Keep's fourth argument is that the district court erroneously denied her
motion to expedite deadlines and motion to extend. According to Elder-Keep, the
district court denied her Rule 60(b) motion on February 14, 2005. She subsequently
filed her motion for reconsideration on February 24, 2005. Elder-Keep sought to
expedite Thraen and Aksamit's responses to the motion to reconsider and the court's
ruling on the motion to reconsider so as to avoid the 30-day deadline to appeal the
Rule 60(b) motion ruling. She filed a motion to extend the time to appeal under
Federal Rule of Appellate Procedure 4(a)(5)(B).
Elder-Keep's argument lacks merit. Her motion to expedite deadlines and
motion to extend were predicated upon her erroneous belief that the denial of her Rule
60(b) motion constituted an appealable order. However, as previously stated, the
district court's order was not a final order, as the claims against Aksamit and Thraen
in their official capacities were still pending. Most importantly, we have already
decided that Elder-Keep had no right to appeal the denial of her Rule 60 motion and
motion for reconsideration. Elder-Keep v. Aksamit, No. 05-2093 (8th Cir. June 17,
2005) (dismissing appeal for lack of jurisdiction).
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E. Summary Judgment
Elder-Keep's fifth argument for reversal is that the district court erroneously
granted summary judgment to Thraen and Aksamit on her official capacity claims
because numerous issues of fact remain unresolved. In addition, she argues that
Aksamit failed to follow the City's policy on force by not giving Keep a verbal
command and by initiating an assault on Keep when Keep's hands were not in his
pockets.6 Furthermore, she asserts that the City's policy allowing only officers trained
in the use of recording equipment to operate it contributed to the alleged assault.7 We
review a district court's grant of summary judgment de novo, viewing the facts in the
light most favorable to the non-moving party. Tamko Roofing Prod., Inc. v. Smith
Eng'g Co., 450 F.3d 822, 829 (8th Cir. 2006).
A suit against a public official in his official capacity is actually a suit against
the entity for which the official is an agent. Kentucky v. Graham, 473 U.S. 159, 165
(1985) ("An official-capacity suit is, in all respects other than name, to be treated as
a suit against the entity. It is not a suit against the official personally, for the real party
6
Prior to the incident, Aksamit underwent 44 hours of instruction in defensive
tactics and 5.5 hours of continuing education on those topics at the LPD police
academy. He also passed a series of exams that tested, among other things, his
knowledge of the appropriate levels of the use of force. The LPD use-of-force policy
requires that the officer use verbal commands first; soft-empty-hand techniques if a
subject resists in a passive or defensive manner; hard empty-hand techniques when a
subject resists in an active or aggressive manner; use of intermediate weapons if hard
empty-hand techniques are ineffective; and, finally, lethal force in the defense of
human life or to defend a person in immediate danger of serious bodily harm. The
LPD does not retain officers who do not pass the training program and disciplines or
requires follow-up training for officers who fail to comply with LPD's use-of-force
policy.
7
No recording was made of the incident, as the City's policy only allows an
officer trained in the use of recording equipment to operate it, and Aksamit was not
trained to operate such equipment.
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in interest is the entity.") (internal citations omitted) (emphasis in original). The
plaintiff must prove that the "municipality itself caused the constitutional violation at
issue." Kuha v. City of Minnetonka, 365 F.3d 590, 604 (8th Cir. 2003) (emphasis in
original). Therefore, to establish the liability of an official acting in his official
capacity, the plaintiff must prove that "a policy or custom [of the city] caused the
alleged violation." Rogers v. City of Little Rock, 152 F.3d 790, 800 (8th Cir. 1998).
Therefore, "[a] municipality cannot be held liable solely because it employs a
tortfeasor," meaning the municipality cannot be held liable on a respondent superior
theory. Kuha, 365 F.3d at 603 (emphasis in original) (internal quotations and citation
omitted).
An "official policy" is a "deliberate choice to follow a course of action made
from among various alternatives by an official who is determined by state law to have
the final authority to establish governmental policy." Id. at 604 (internal quotations,
citations, and alterations omitted).
Here, Elder-Keep has failed to allege an unconstitutional policy or custom that
caused a constitutional violation of a federally protected right or privilege. Elder-Keep
identifies two of the City's policies that she contends led to Keep's assault: (1) the
City's policy on force and (2) the City's policy that only officers trained in the use of
recording equipment may operate it.
As to the City's policy on force, Elder-Keep does not argue that the City's use-
of-force policy caused the constitutional deprivation but that Aksamit's failure to
follow the policy caused the constitutional deprivation. Elder-Keep did not dispute the
evidence that the City's policies on force and training practices are designed to ensure
that officers exercise any use of force in a lawful manner.
As to Elder-Keep's allegation that Keep's assault was caused by the City's policy
allowing only officers trained in the use of recording equipment to operate it, she has
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not shown how Aksamit's failure to use the equipment "caused" the alleged assault.
As Elder-Keep herself points out, the videotape would only show the events leading
up to the alleged assault. The videotape itself could not have prevented or caused the
assault.
Given the nature of the issues, any factual questions remaining respecting the
events at the hospital are not material. Therefore, we hold that the district court did not
err in granting Thraen's and Aksamit's second motion for summary judgment.
F. Motion to Extend
Next, Elder-Keep argues that the district court erroneously denied her motion
to extend as moot. According to Elder-Keep, at the time that her response to the
second motion for summary judgment was due, she had already filed an unopposed
motion to extend the deadline. However, when the district court did not issue a ruling
on her motion to extend, she filed all the evidence in her possession but expressly
noted that additional depositions would occur on September 7, 2005 and September
15, 2005. Thus, Elder-Keep maintains that because she properly alerted the district
court that she would file late depositions, the district court abused its discretion in
holding that the motion to extend was moot. We review a district court's denial of a
motion to extend for an abuse of discretion. See Ceridian Corp. v. SCSC Corp., 212
F.3d 398, 401 (8th Cir. 2000).
While Elder-Keep initially asked the district court to extend the deadline until
September 23, 2005, she failed to submit an additional brief or any additional
evidence as of September 26, 2005, the date on which the district court denied Elder-
Keep's motion to extend as moot. Therefore, we agree with the district court that even
if it had granted Elder-Keep's motion to extend, she failed to meet her requested
deadline of September 23, 2005. The district court's treatment of the motion as moot
was not an abuse of discretion.
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G. Motion for Reconsideration
and for Leave to Submit Additional Evidence
Finally, Elder-Keep maintains that the district court abused its discretion in
denying her motion for reconsideration and for leave to submit additional evidence
and a supplemental brief. According to Elder-Keep, her counsel did not receive the
remaining depositions until September 27, 2005, a day after the district court's order.
Therefore, she immediately filed a motion for reconsideration and for leave to file the
additional evidence and supplemental brief, attaching the depositions of several
witnesses.
As we previously noted, the local rules provide that the district court will
ordinarily deny a motion for reconsideration unless the party demonstrates a showing
of manifest error in the prior ruling or demonstrates new facts or legal authority that
the party could not have previously produced with reasonable diligence to the court.
NECivR 60.1(c). Elder-Keep has failed to meet this burden. Therefore, we hold that
the district court did not err in denying Elder-Keep's motions.
III. Conclusion
Accordingly, we affirm the judgment of the district court in all respects.
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