Zinkand v. Brown

• Decision Date: 01 March 2007
• Docket Number: No. 05-2170.,05-2170.
• Citation: 478 F.3d 634
• Parties: Timothy ZINKAND, Plaintiff-Appellant, v. Timothy S. BROWN, Defendant-Appellee, and Anne Arundel County Police Department; K. Edmonds, Detective; T.A. Giunta, Detective; Unnamed Detectives and Police Officers, Defendants.
• Court: U.S. Court of Appeals — Fourth Circuit

478 F.3d 634

Timothy ZINKAND, Plaintiff-Appellant, v. Timothy S. BROWN, Defendant-Appellee, and Anne Arundel County Police Department; K. Edmonds, Detective; T.A. Giunta, Detective; Unnamed Detectives and Police Officers, Defendants.

No. 05-2170.

United States Court of Appeals, Fourth Circuit.

Argued: October 25, 2006.

Decided: March 1, 2007.

ARGUED:

Neal Cormac Baroody, Baroody & O'Toole, Baltimore, Maryland, for Appellant. Andrew Jensen Murray, Anne Arundel County Office of Law, Annapolis, Maryland, for Appellee.

ON BRIEF:

Thomas O'Toole, Baroody & O'Toole, Baltimore, Maryland, for Appellant. Linda M. Schuett, County Attorney, Anne Arundel County Office of Law, Annapolis, Maryland, for Appellee.

Before WIDENER, WILLIAMS, and TRAXLER, Circuit Judges.

Reversed and remanded by published opinion. Judge TRAXLER wrote the majority opinion, in which Judge WILLIAMS joined. Judge WIDENER wrote a dissenting opinion.

OPINION

TRAXLER, Circuit Judge:

Timothy Zinkand brought this § 1983 action against Anne Arundel County, Maryland, and several of its police officers, including Officer Brown. The district court granted summary judgment in favor of all defendants, and Zinkand moved for reconsideration. The district court denied Zinkand's motion, and Zinkand appeals only the decision rendered in favor of Detective Timothy Brown on the claim of excessive force. We hold that the district court erred in denying Zinkand's motion to alter or amend by finding that judicial estoppel applied, and we must therefore reverse and remand.

I.

On April 11, 2000, officers of the Anne Arundel County police were conducting an undercover drug purchase in a shopping center parking lot within their jurisdiction. Officer Kenneth Edmonds was there with Connie Williams, a confidential informant, to purchase heroin from Robert Carr, Williams's boyfriend. Carr arrived on foot, led Edmonds behind a Photomat booth, and then took money from Edmonds for the drugs. While all of this was going on, Zinkand arrived by automobile. At some point Carr went over to Zinkand's car and an object was passed from Zinkand to Carr. Edmonds gave a pre-arranged signal, and law enforcement officers converged on the scene.

Detective Brown was among those officers responding. Brown went to the driver's door of Zinkand's car and ordered Zinkand to show his hands. Brown then removed Zinkand from the car and took him to the ground to handcuff him. In the process, Zinkand's head hit the pavement, and Zinkand sustained an injury.

Zinkand was charged in state court with a number of drug offenses and resisting arrest. A plea bargain was reached between Zinkand and the state whereby Zinkand would submit to a period of probation on the charge of resisting arrest as long as the state judge would not require an admission of guilt and not enter a criminal judgment against Zinkand. The state represented in open court that if the judge refused to impose probation and withhold judgment, the state would not oppose a motion from Zinkand to withdraw his plea. Pursuant to this arrangement Zinkand ultimately entered a plea in accord with North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), a case in which the Supreme Court held that a criminal defendant could "voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime." Id. at 37, 91 S.Ct. 160.

During the plea process, the state trial judge advised Zinkand about the nature of his plea:

[The] Alford plea that you have entered into is, is like a guilty plea. The difference is that you're allowed to maintain your innocence, but the final results are the same. As long as I find that there are sufficient facts to support your plea, I'm going to enter a verdict of guilty. Is that understood?

J.A. 162. Zinkand indicated that he understood the consequences of his plea, and the court accepted his plea with Zinkand never specifically agreeing that he resisted arrest. The trial court, following Maryland procedure, did not enter a judgment but instead imposed "probation before judgment." Md.Code Ann.Crim. Proc. § 6-220(b) (2001).

Zinkand thereafter brought suit in federal court against the law enforcement officers and Anne Arundel County. After conducting discovery, the defendants moved for summary judgment. The defendants supported their motion with deposition testimony of the officers on the scene at the time of the arrest, deposition testimony of Carr and Zinkand, hospital records of medical personnel who examined Zinkand the night of his arrest, a transcript of Zinkand's plea in state court, and an affidavit from an expert in police practices, policy, and training. Although Zinkand was represented by counsel, his attorney filed no opposition to the defendants' motion for summary judgment. The district court granted summary judgment in favor of the defendants. The court explained:

As to plaintiff's claim for excessive force, only one of the defendants (Officer Brown) touched plaintiff and this officer was fully justified in using his hands to subdue plaintiff. Plaintiff entered an Alford plea to a charge of resisting arrest, and this resistence precipitated the use of force about which plaintiff now complains. He suffered only a minor laceration, and the use of force was reasonable as a matter of law.

J.A. 180 (footnote omitted).

Six days later, Zinkand, acting pro se, filed in the district court's chambers a document styled, "A Request to Reconsider On Motion for Summary Judgment and Time To Find New Counsel." Zinkand attached copies of police reports, a number of unsigned statements, and an outline of questions about the defendants' evidence.

Zinkand thereafter obtained new lawyers, who filed a document identified as a "Supplemental Memorandum and Reply In Support of Motion To Alter or Amend Judgment." Along with this memorandum were a number of documents including deposition excerpts, a medical report, and a photograph. The defendants replied with a final memorandum, and the motion was scheduled for argument before the district court.

It is not apparent from the record whether the supplemental memorandum was filed under Rule 59(e) or 60(b) of the Federal Rules of Civil Procedure. The memorandum filed by Zinkand's attorneys prior to the hearing referred to the motion as one to alter or amend, which suggests a motion under Rule 59(e), and the motion cited case law referencing Rule 59(e). But when the attorneys argued the motion before the district court, counsel stated that Zinkand was there "under Rule 60, and primarily on equitable grounds." J.A. 214. The differences between the two rules are substantial and affect what evidence can be considered and what law controls.

Ultimately, however, what is important is how the district court viewed the matter, and in this regard the court was very clear and specifically ruled on "the motion to alter or amend." J.A. 235. No objection was raised to the court's statement then or since. We therefore examine the district court's decision on the merits in this context and subject to the rules governing Rule 59(e).

II.

The Rules of Civil Procedure provide several methods by which judgments may be re-examined. One vehicle is a motion to alter or amend under Rule 59(e). The rule does not specify the reasons that will support such a motion and provides only that such motions "shall be filed no later than 10 days after entry of the judgment." Fed.R.Civ.P. 59(e). Our case law makes clear, however, that Rule 59(e) motions can be successful in only three situations: "`(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.'" Ingle v. Yelton, 439 F.3d 191, 197 (4th Cir.2006) (quoting Pac. Ins. Co. v. Am. Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.1998)).

Thus, Rule 59(e), in essence, gives the district court a chance to correct its own mistake if it believes one has been made. See Pac. Ins. Co., 148 F.3d at 403. To this end, the court, of necessity, has some discretion to determine whether additional evidence should be considered or further argument heard. If the court elects to look at additional evidence represented as having been unavailable at the prior hearing, the court must satisfy itself as to the unavailability of the evidence and likewise examine the justification for its omission. See RGI, Inc. v. Unified Indus., Inc., 963 F.2d 658, 662 (4th Cir.1992) (concluding that a district court can accept new evidence under Rule 59(e) as long as the party provides justification for why the evidence was not presented previously). Here the district court was dealing with a situation where Zinkand's prior counsel apparently had simply refused to go forward with Zinkand's case. There were hints in the record as to what the reason for that refusal was, but whatever the reason, the district court saw fit to consider the new evidence. Because the defendants have not objected to the court's consideration of the new evidence, we will not look behind that decision.

The same analysis applies to the district court's decision to hear further legal argument. The district court has discretion to consider new arguments in some circumstances. After evaluating all of the issues presented to it, the district court held a hearing, received the new evidence, listened to extensive argument, and ultimately decided to deny the motion to alter or amend the judgment. We review that decision for an abuse of discretion. See Ingle, 439 F.3d at 197.

The district court believed that the additional evidence supplied by Zinkand created a genuine issue of material fact that would ordinarily require a trial for resolution, a point agreed to by counsel for the defendant.¹ If this had been the only issue, obviously the district court would have...