Mims v. Oliver
| Decision Date | 18 July 2017 |
| Docket Number | CIVIL ACTION NO. H-15-644 |
| Parties | LISA MIMS and JOSHUA JACKSON, Plaintiffs, v. J.D. OLIVER, Defendant. |
| Court | U.S. District Court — Southern District of Texas |
Pending before the court1 are Plaintiffs' Motion for Summary Judgment (Doc. 91), Defendant's Motion for Summary Judgment and Amended Motion for Summary Judgment (Docs. 92, 97), Defendant's Motion to Strike Plaintiffs' Summary Judgment Evidence (Doc. 103), Plaintiffs' Motion for Partial Summary Judgment (Doc. 114), and Plaintiffs' Objections to Defendant's Exhibits (Doc. 165). The court has considered the motions, the responses, all other relevant filings, and the applicable law.
For the reasons set forth below, the court RECOMMENDS that Defendant's motion to strike be GRANTED IN PART AND DENIED IN PART, Plaintiffs' objections be OVERRULED, Plaintiffs' motion for summary judgment be DENIED, Plaintiffs' motion for partial summary judgment be DENIED AS MOOT, and Defendant's motion for summary judgment be GRANTED IN PART AND DENIED IN PART AS MOOT. Because the courtrecommends dismissal of all of Plaintiffs' federal claims, the court declines to exercise supplemental jurisdiction over Plaintiffs' remaining state law claims and RECOMMENDS that this action be DISMISSED.
Plaintiffs filed this action on March 11, 2015, against Defendant J.D. Oliver ("Oliver"), a former professor at Prairie View A&M University ("Prairie View"), alleging civil rights violations under 42 U.S.C. § 1983 ("Section 1983") and several related state law claims.
Plaintiff Lisa Mims ("Mims") was a student at Prairie View and registered for Oliver's computer education course during the Fall 2013 semester.2 Mims averred that she visited Oliver's office several times, and, on one occasion, Oliver propositioned Mims for sex at a hotel.3 Mims became alarmed at Oliver's statement and stood up to leave his office.4 Oliver blocked Mims from leaving his office, forced her up against his body, and grabbed herbreast.5 Out of concern that he would try to rape her, Mims averred, Mims pulled away and left his office.6
Oliver denied under oath that Mims came to his office and that he grabbed her breast.7 Oliver testified that he loaned Mims a textbook after Mims explained to him that she was not performing well in his class because she had a job at night in addition to school responsibilities.8 Oliver also told Mims that she could work with his teaching assistant but denied that he offered her help on the final exam or with her missing assignments.9
Mims averred that Oliver obtained her cell phone number from an unknown source.10 During his deposition, Oliver was questioned about phone calls made to Mims from his cell phone. When asked to confirm that the number from which the calls were placed was his cell phone number, Oliver stated "It looks like-if I can remember correctly, my old number that was stolen."11 The phone records showed frequent calls from late November 2013 through December 14,2013, to Mims' cell phone from Oliver's former number.12 Oliver denied that he called Mims and stated that he did not know why the phone records reflected that he called Mims on those dates.13 Mims averred that Oliver offered her, in person and over the phone, an "A" in his class without taking the final or turning in missing assignments if she agreed to have sex with him and threatened to fail her if she did not have sex with him.14
On Saturday, December 14, 2013, Oliver testified, he needed to grade papers to meet the end of the semester deadline.15 Because his wife had scheduled the carpets to be cleaned, Oliver planned to go to Prairie View to work.16 On his way to campus, Oliver stopped at an IHOP to eat breakfast.17 After eating, Oliver began feeling faint so he decided to check into a nearby hotel instead of going to campus to work.18 Mims called Oliver to return the textbook she had borrowed.19 Oliver told her that he would not be working oncampus that day.20 Mims averred that, although she agreed to meet Oliver at the hotel, she did not intend to have sex with him, but instead her intention was to confront him about his inappropriate behavior towards her in the presence of witnesses.21 Mims and Jackson averred that they wanted proof that Oliver had asked Mims to go to the hotel to have sex with him.22 Oliver testified that he intermittently graded and took naps that day until Mims arrived at the hotel with Jackson and two other men around 4:30 in the afternoon.23
Mims, Jackson, and two other men24 went to the hotel room.25 When Mims knocked on the door, Oliver stopped grading, looked out through the eyehole in the door, and saw Mims and the three men.26 Oliver testified that he opened the door for them and they "threw [him] on the floor."27 As one of the men held Oliver on the floor,they demanded that Oliver give them $9,000 and then took his credit cards, driver's license, and thirteen dollars in cash from his wallet.28 They recorded the incident and threatened Oliver that they would disclose prior recordings they had of his conversations with Mims if he did not pay them.29 Jackson played one of the recordings for Oliver.30 They also looked through Oliver's computer and took "pictures of [him] with condoms."31 Mims and Jackson averred that they did not rob Oliver at the hotel.32
Oliver testified that after Plaintiffs and the two men left, Oliver went to the front desk and called the police.33 Oliver subsequently filed criminal charges against Plaintiffs.34
Jackson testified that, after the incident took place at the hotel room, he and Mims went to Oliver's home and put notes in his mailbox and on his car stating, "J.D. Oliver contact 281-782-1711 or this information will be shared! -thank you."35 Jacksontestified that they went to Oliver's home because Mims had not received a grade for the class.36 Additionally, Oliver testified that he received an email from Mims on December 15, 2013, informing him that, because Oliver had not contacted them as instructed, they would release the recordings and a video to his wife, his place of work, and local radio stations.37
Oliver was later terminated by Prairie View as a result of Mims' complaint of the incident.38 Oliver subsequently filed two lawsuits, one against Plaintiffs and another against Prairie View.39 Both lawsuits were dismissed on jurisdictional grounds.40
Plaintiffs filed their complaint on March 11, 2015, alleging the following federal constitutional causes of action brought under Section 1983: equal protection, First Amendment retaliation, and unreasonable seizure under Section 1983.41 Plaintiffs also brought state law causes of action: Texas constitutional claims, officialoppression, unlawful restraint, assault, slander per se, and malicious prosecution.42 Plaintiffs filed a first amended complaint with leave of court on January 15, 2016, stating that they made changes that included: (1) adding a claim for abuse of process; (2) dropping the official oppression cause of action; and (3) substituting a federal malicious prosecution claim in lieu of a state law malicious prosecution claim.43 Additionally, Mims recharacterized her equal protection claim as equal protection and substantive due process claims.44 Plaintiffs later supplemented their first amended complaint to add a claim of invasion of privacy, which is the subject of the pending motion for partial summary judgment.45
The deadline for dispositive motions was extended to November 28, 2016, after Oliver failed to timely produce certain discovery items and failed to provide potential dates for his and his wife's depositions.46 On November 28, 2016, Plaintiffs filed their motion for summary judgment.47 On November 29, 2016, one day past thedeadline for dispositive motions, Oliver filed his motion for summary judgment.48 Oliver asked the court for leave to file his motion for summary judgment one day late, which the court granted.49 However, without leave of court, on December 15, 2016, Oliver filed a "corrected" motion for summary judgment along with some, but not all, of the exhibits referenced in the motion.50 Oliver subsequently filed a motion to strike Plaintiffs' summary judgment evidence and a response to Plaintiffs' motion.51
Plaintiffs filed a response to Oliver's corrected motion for summary judgment on December 20, 2016.52 Plaintiffs, in their response, objected to the court's consideration of Oliver's incomplete and/or missing exhibits.53 On June 6, 2017, the court ordered Oliver to produce a complete set of exhibits to the court by June 9, 2017.54 Oliver submitted the missing exhibits on June 8, 2017.55 Plaintiffs object to the court's consideration of theseexhibits.56
Oliver lodges a number of objections to Plaintiffs' summary judgment evidence in his motion to strike. Additionally, in his response to Plaintiffs' motion for summary judgment, Oliver asks the court to strike statements he characterizes as conclusory contained in the requests for admission and the first amended complaint. Plaintiffs object to Oliver's evidence and presentation of the facts and contend that the complaint and requests for admission are deemed admitted due to Oliver's late-filing of certain documents.
A party must support its factual positions on summary judgment by citing to particular evidence in the record. Fed. R. Civ. P. 56(c)(1). Federal Rule of Civil Procedure 56(c)(2) allows a movant to object to exhibits that "cannot be presented in a form that would be admissible in evidence" under the Federal Rules of Evidence.
Only relevant evidence is admissible. Fed. R. Evid. 402. Relevant evidence has a "tendency to make a fact more or less probable than it would be without the evidence" and relates to a fact "of consequence in determining the action." Fed. R. Evid. 401. Affidavits supporting summary judgment "must be made...
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