United States District Court, D. Maryland
VINCENT E. JUNE, JR., Plaintiff,
OFFICER E. THOMASSON, Defendant.
L. RUSSELL, III UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Defendant Officer Eric
Thomasson's (“Officer Thomasson”) Motion to
Alter or Amend the Court's December 20, 2016 Order (ECF
No. 62). The Motion is fully briefed and ripe for
disposition. No hearing is necessary. See Local Rule
105.6 (D.Md. 2016). For the reasons that follow, the Court
will deny the Motion because it is untimely. The Court,
however, will also sua sponte reconsider its December 20,
2016 Order and after conducting a full qualified immunity
analysis, again deny Officer Thomasson's Motion for
Summary Judgment (ECF No. 27).
PROCEDURAL BACKGROUND 
31, 2014, Plaintiff Vincent E. June, Jr. brought a federal
civil rights action against Officer Thomasson, raising one
count of malicious prosecution. (Compl., ECF No. 1). June
alleged specifically that Officer Thomasson violated his
Fourth Amendment right to be free from unreasonable seizures
that occur when an officer deliberately, or with reckless
disregard for the truth, makes material false statements or
omits material facts in a warrant application. (See
id. ¶¶ 11-13, 15, 21). Officer Thomasson
answered on December 8, 2014, asserting qualified immunity as
an affirmative defense. (Answer at 4, ECF No. 9).
Thomasson filed a Motion for Summary Judgment on June 23,
2015, attaching Goodwin's First Affidavit for support that
Officer Thomasson had probable cause to arrest June. (ECF
Nos. 27, 27-3). Officer Thomasson neither argued nor
attempted to demonstrate why he was entitled to qualified
10, 2015, June filed his Opposition to the Motion for Summary
Judgment, attaching Goodwin's Second Affidavit in
support. (ECF Nos. 28, 28-7). In Goodwin's Second
Affidavit, victim Antonio Goodwin completely contradicts
almost every factual assertion in his First Affidavit,
including the material fact of whether Goodwin identified
June as one of his attackers. (See Goodwin 2d Aff.
at 2-4, ECF No. 28-7). Goodwin, however, explained in his
Second Affidavit that the statements in his Second Affidavit
contradict those in his First Affidavit because an Anne
Arundel County investigator prepared the First Affidavit
outside Goodwin's presence and without Goodwin's
input. (Id. ¶¶ 11-17). According to
Goodwin, the County investigator did not review the contents
of the First Affidavit with Goodwin, and Goodwin signed the
First Affidavit without reading it because his mother
implored him to do so out of her desire to end the matter.
(Id. ¶¶ 15, 16, 18).
23, 2015, Officer Thomasson filed his Reply in further
support of his Motion for Summary Judgment, arguing-for the
first time-that he was entitled to qualified immunity.
(See ECF No. 31 at 7-10). Officer Thomasson also
attached an affidavit from Officer Levar DeLoatch
(“Officer DeLoatch”), in which Officer DeLoatch
states that while speaking to Goodwin on August 30, 2011,
Goodwin advised him that “an individual named Vincent
was also involved in [Goodwin's] assault” and
“Vincent is a friend of” one of the alleged
assailants. (DeLoatch Aff. at 1, ECF No. 31-1). Officer
DeLoatch further states that he “relayed this
information to Officer Thomasson.” (Id.).
July 23, 2015, Officer Thomasson moved to strike
Goodwin's Second Affidavit. (ECF No. 32). On August 10,
2015, June filed a Motion to Strike New Arguments Made in
Defendant's Reply or, in the Alternative, Motion for
Leave to File Surreply. (ECF No. 33). On October 21, 2015,
the Court granted in part and denied in part Officer
Thomasson's Motion for Leave to File Surreply. (ECF No.
38). The Court granted June seven days to file a surreply
addressing only Officer DeLoatch's affidavit and Officer
Thomasson's qualified immunity argument. (Id.).
On October 28, 2015, June filed a timely Surreply in
Opposition to Officer Thomasson's Motion for Summary
Judgment. (ECF No. 39).
November 18, 2015, the Court granted Officer Thomasson's
Motion to Strike on two alternative grounds. First, the Court
concluded that Goodwin's Second Affidavit was a sham
(Mem. Op. at 8-9, ECF No. 40). Second, the Court found that
an exclusion analysis under Federal Rule of Civil Procedure
37(c)(1) militated in favor of excluding Goodwin's Second
Affidavit as a sanction for June's failure to timely
supplement his discovery responses. (Id. at 10-11).
Relying on Goodwin's First Affidavit, and the other
evidence that the Parties presented, the Court then concluded
as a matter of law that Officer Thomasson had probable cause
to arrest June. (Id. at 11-14). In a footnote near
the end of the Court's Memorandum Opinion resolving
Officer Thomasson's Motions to Strike and for Summary
Judgment, the Court addressed Officer Thomasson's
qualified immunity argument-an argument that Officer
Thomasson did not raise until his Reply in support of summary
judgment. The Court concluded that Officer Thomasson would be
protected by qualified immunity because based on the
undisputed record evidence, Officer Thomasson was entitled to
judgment as a matter of law on the first prong of the
qualified immunity analysis. (Id. at 14 n.3). The
Court then granted Officer Thomasson's Motion for Summary
Judgment and directed the Clerk to close the case.
December 16, 2015, June filed a timely Motion to Alter or
Amend Judgment under Rule 59(e) (ECF No. 45). After reviewing
the parties' briefs, the Court held a motions hearing on
July 6, 2016. (ECF No. 49). Following the hearing, the Court
reopened discovery for the limited purpose of resolving
June's Motion to Alter or Amend. (ECF No. 50). The Court
gave the parties forty-five days to take depositions
regarding any facts that would have been discoverable had the
parties taken Goodwin's deposition during discovery,
including, but not limited to, the circumstances surrounding
the creation of Goodwin's First and Second Affidavits.
(Id.). Following the renewed discovery period, the
parties supplemented their briefs regarding the Motion to
Alter or Amend. (See ECF Nos. 55-57).
December 20, 2016, the Court granted June's Motion to
Alter or Amend Judgment. (ECF No. 60). After reviewing United
States Supreme Court and Fourth Circuit precedent regarding
the sham affidavit rule, the Court concluded that it clearly
erred when it discounted Goodwin's explanation for the
contradictions in his Second Affidavit and ruled that the
affidavit was a sham. (Mem. Op. at 9-17, ECF No. 59). The
Court then conducted a renewed analysis under Southern
States Rack and Fixture, Inc. v. Sherwin-Williams Co.,
318 F.3d 592 (4th Cir. 2003), concluding that excluding
Goodwin's Second Affidavit under Rule 37(c)(1) was no
longer warranted. (Id. at 22- 23). The Court next
concluded that “relying on testimony consistent with
Goodwin's Second Affidavit, a reasonable jury could find
Officer Thomasson did not have probable cause to arrest
June.” (Id. at 25). The Court did not address
qualified immunity because as the Court explained in an
earlier footnote in its Memorandum Opinion, Officer Thomasson
waived that argument. (Id. at 5 n.1).
the Court concluded that a reasonable jury could find that
Officer Thomasson did not have probable cause to arrest June,
the Court further concluded that it clearly erred when it
granted Officer Thomasson's Motion for Summary Judgment.
(Id. at 25). Accordingly, the Court vacated its
Order entering summary judgment for Officer Thomasson and
denied Officer Thomasson's Motion for Summary Judgment
without prejudice. (Id.).
Thomasson filed the present Motion to Alter or Amend on
January 12, 2017, asking the Court to alter or amend its
December 20, 2016 Order granting June's Motion to Alter
or Amend. (ECF No. 62). The present Motion was fully briefed
as of February 7, 2017. (See ECF Nos. 63-64).
Officer Thomasson's Motion to Alter or
Standard of Review
Thomasson moves under Rule 59(e), which applies only to final
judgments. Fayetteville Inv'rs v. Commercial
Builders, Inc., 936 F.2d 1462, 1469 (4th Cir. 1991). The
Court may only alter or amend a final judgment under Rule
59(e) in three circumstances: “(1) to accommodate an
intervening change in controlling law; (2) to account for new
evidence not available at trial; or (3) to correct a clear
error of law or prevent manifest injustice.” Pac.
Ins. Co. v. Am. Nat'l Fire Ins. Co., 148 F.3d 396,
403 (4th Cir. 1998). Rule 59(e) “permits a district
court to correct its own errors, ‘sparing the parties
and the appellate courts the burden of unnecessary appellate
proceedings.'” Id. (quoting Russell v.
Delco Remy Div. of Gen. Motors Corp., 51 F.3d 746, 749
(7th Cir. 1995)). Altering or amending a final judgment
“is an extraordinary remedy which should be used
sparingly.” Id. (citation and internal
quotation marks omitted).
Thomasson asks the Court to alter or amend its December 20,
2016 Order, but he does not appear to argue in favor of any
of the three circumstances permitting relief under Rule
59(e). Instead, Officer Thomasson argues that the Court
should rule on qualified immunity because that issue was
fully briefed and under long-standing Supreme Court and
Fourth Circuit precedent, Officer Thomasson is entitled to a
ruling on qualified immunity before trial.
response, June advances three main arguments. First, Officer
Thomasson's Motion is untimely because Officer Thomasson
challenges an interlocutory order, not a final order, and
Officer Thomasson filed his Motion more than fourteen days
after the Court entered the December 20, 2016 interlocutory
Order. Second, Officer Thomasson waived his qualified
immunity argument by failing to raise it until his Reply in
support of summary judgment. Third, even if Officer Thomasson
did not waive his qualified immunity argument, Officer
Thomasson is not entitled to qualified immunity. The Court
will first address June's timeliness argument.
Timeliness of Officer Thomasson's Motion
correct that the Court's December 20, 2016 Order is an
interlocutory order-not a final order. Madison River
Mgmt. Co. v. Bus. Mgmt. Software Corp., 402 F.Supp.2d
617, 619 (M.D. N.C. 2005) (“The court's denial of
summary judgment is an interlocutory order.”). Rule
54(b)-not Rule 59(e)-governs motions to reconsider
interlocutory orders. See Fayetteville, 936 F.2d at
1470 (finding district court properly reconsidered
interlocutory order under Rule 54(b)). The Court concludes,
thus, that Rule 54(b) governs Officer Thomasson's Motion.
54(b) and 59(e) motions have different filing deadlines.
Litigants must file Rule 59(e) motions no later than
twenty-eight days after the entry of the final judgment.
Fed.R.Civ.P. 59(e). Litigants must file Rule 54(b) motions no
later than fourteen days after entry of the interlocutory
order. See Local Rule 105.10 (D.Md. 2016)
(“Except as otherwise provided in Fed.R.Civ.P. 50, 52,
59, or 60, any motion to reconsider any order issued by the
Court shall be filed with the Clerk not later than fourteen
(14) days after entry of the order.”). Officer
Thomasson filed his Motion on January 12, 2017- within the