460 F.3d 979 (8th Cir. 2006), 05-3991, Elder-Keep v. Aksamit

Docket Nº:05-3991.
Citation:460 F.3d 979
Party Name:Sharon ELDER-KEEP, Appellant, v. Troy AKSAMIT, Individual capacity; Jerome Thraen, Sgt., Individual capacity and in their official capacities as Police Officers; City of Lincoln, Appellees.
Case Date:August 21, 2006
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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460 F.3d 979 (8th Cir. 2006)

Sharon ELDER-KEEP, Appellant,


Troy AKSAMIT, Individual capacity; Jerome Thraen, Sgt., Individual capacity and in their official capacities as Police Officers; City of Lincoln, Appellees.

No. 05-3991.

United States Court of Appeals, Eighth Circuit.

Aug. 21, 2006

Submitted: May 19, 2006.

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[Copyrighted Material Omitted]

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Counsel who presented argument on behalf of the appellant was Michael Burdic Kratville, Omaha, Nebraska.

Counsel who presented argument on behalf of the appellee was Joseph J. Rupp, Lincoln, Nebraska.

Before BYE, HANSEN, and SMITH, Circuit Judges.

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 officers asserted that qualified immunity shielded them. The district court 2 granted this motion for summary judgment after excluding two of the plaintiffs affidavits filed in opposition to the motion. After denying several other of the plaintiffs 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

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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 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 to qualified immunity. In opposition to summary judgment, plaintiffs 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

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were "at times contradictory with the allegations in the Amended Complaint itself." The district court thus "disregard[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, plaintiffs 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 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

The district court then granted the second motion for summary judgment to

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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 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


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