1 United States Court of Appeals,

Fifth Circuit.

No. 96-40583

Summary Calendar.

Frank MILLAR, Plaintiff-Appellant,

v.

Scott HOUGHTON, Trooper, et al., Defendants,

Scott Houghton, Trooper; Fnu Garrett, Trooper; Pat Golden,

Officer, Defendants-Appellees.

June 24, 1997.

Appeal from the United States District Court for the Eastern

District of Texas.

Before WISDOM, EDITH H. JONES and BENAVIDES, Circuit Judges.

WISDOM, Circuit Judge:

The plaintiff, Fran k Millar, brought this 42 U.S.C. § 1983

action against police officers Scott Houghton, Charles Garrett, Pat

Golden, and Curtis Amyx alleging wrongful arrest, excessive force

used during the arrest, and state law claims of assault, battery,

and intentional infliction of emotional distress.

The following facts are not disputed. Around 10:00 p.m. on

an evening in January 1993, Millar and his father drove to Millar's

laundromat in Sanger, Texas. Upon arriving, Millar noticed Texas

State Trooper Houghton engaged in a routine traffic stop close to

the rear of the building. While his father went inside, Millar

watched Houghton from the rear of the building. The traffic stop

escalated into a search of the vehicle. Millar continued to watch

and called his wife with a walkie-talkie type device.2

Officer Golden arrived during Houghton's qu estioning of the

driver, and Houghton informed him that someone was watching from

behind the bushes near the building. Alerted by the noise of the

walkie-talkie, both Golden and Houghton shone their flashlights

toward Mi llar. As Houghton and Golden began approaching Millar,

Millar began backing up and threw the case of the walkie-talkie to

the ground, but he continued to hold the device in his hand.

At this point the parties' recollections diverge. According

to Houghton, Millar refused all commands to stop, was holding the

device in one hand, and had the other hand concealed in his pocket,

prompting Houghton and Garrett to display their guns. According to

Millar, he did not hear any commands and never put his hands in his

pockets. Millar contends that he had both hands in the air, and

that he turned to place them on the buildin g, when the officers

approached and began striking him. According to Houghton, the

officers simply wanted to frisk him for weapons, but Millar

provoked the officers to physically position him by refus ing all

commands. A scuffle broke out and Millar landed on the ground near

an air conditioner compressor.

At this time, Millar's father exited the laundromat, and

officer Garrett and other officers arrived. Millar's wife and

mother arrived shortly thereafter. Houghton, Golden, and Garrett

attempted to bring Millar to his feet, but he resisted by clinging

to the compressor. The officers then used force to bring Millar to

his feet and restrain him. Eventually, he was handcuffed and taken

to an emergency room.3

Early in the case, defendants Golden and Amyx filed a joint

motion to dismiss and/or for summary judgment, arguing that

M illar's claims could not defeat a defense of qualified immunity

and that there was no genuine issue of fact to support a claim of

wrongful arrest, excessive force, or inte ntional infliction of

emotional distress against Golden or Amyx. The district court

granted summary judgment in favor of defendant Amyx, but denied the

motion for Golden. No one contests the summary judgment dismissing

Amyx. Defendants Houghton and Garrett jointly filed a similar

motion for summary judgment sometime later, arguing additiona lly

that the evidence did not sufficiently support the significant

injury element of Millar's claim of excessive force. The district

court found that, even if the plaintiff were required to show

significant injury as an element of his excessive force claim,

there was enough evidence of significant injury to present the

issue to a jury. Furthermore, the court found sufficient evidence

to raise a dispute regarding whether the force used was excessive.

Following the denial of defendants' motions for summary

judgment, the parties took the deposition of Dr. Gary Watts, a

psychiatrist who treated Millar three times in the years following

the incident. Dr. Watts stated that Millar had a pre-existing

paranoid delusional condition, particularly with law enforcement

agencies. According to Dr. Watts, Millar believed that police

officers and others were conspiring to harm him. Millar

experienced anxiety whenever seeing a police officer and would be

curious and highly suspicious in the presence of an officer. Dr.4

Watts testified that this condition could have contributed to

Millar's resistance to the defendants' approach and commands.

Soon after the deposition, Millar's attorney filed a motion to

withdraw as counsel. Millar's attorney attached a copy of the

deposition to the motion and stated that he had discussed the

status of the case with Millar and that Millar had discharged him.

Millar's attorney further stated in his motion that, given Dr.

Watts' testimony, he could no longer represent Milla r in good

faith. No counsel was substituted in the motion, but the motion

and its certificate of service indicate that Millar was forwarded

a copy of both the motion and Dr. Watts' deposition. The district

court granted the motion to withdraw. Also, the district court, on

its own motion, and without giving notice to Millar, vacated its

prior orders denying summary judgment and granted summary judgment

in favor of all defendants. The district court then issued a final

judgment dismissing the case with prejudice. In vacating its prior

o rders and granting summary judgment against Millar, the court

stated:

On the basis of Mr. Millar's affidavit, the Cour t has

previously denied Defendants' motion for summary judgment.

Having reexamined the Defendants' motion in light of the

information regarding Millar's mental condition, the Court

finds Mr. Millar's affidavit to be unreliable and insufficient

to create a fact issue in this case.

With new counsel, Millar appeals the district court's grant of

summary judgment and the dismissal of his case. Millar contends

that the district court erred in reversing its prior denial of

summary judgment based on new evidence without giving Millar notice

or an opportunity to respond. We agree.1 N.L. Industries, Inc. v. GHR Energy Corp., 940 F.2d 957, 965

(5th Cir.1991).

2 I d., ; a ccord, Stella v. Town of Tewksbury, 4 F.3d 53, 55

(1st Cir.1993).

3 704 F.2d 822, 828 (5th Cir.1983).

4 996 F.2d 734, 738 n. 6 (5th Cir.1993).

5 910 F.2d 167, 184-85 (5th Cir.1990).

5 Under Fed.R.Civ.P. 56(c), a party must be served with a motion

for summary judgment at least 10 days be fore a court grants the

motion against him. Similarly, a party must be given at least 10

days notice before a court grants summary judgment sua sponte. 1

This requirement places a party on notice that he is in jeopardy of

having his case dismissed and affords him the opportunity to put

forth evidence to show precisely how he intends to prove his case

at trial. 2

Millar argues that the district c o urt improperly granted

summary judgment sua sponte without giving him proper notice under

Rule 56(c). In this case, however, the district court did not

grant summary judgment sua sponte. The court reconsidered and

vacated its prior denial of summary judgment.

Houghton and Garrett argue that a court retains jurisdiction

over a denial of summary judgment and may reverse its decision at

any time without giving notice. In support of their contention,

they cite Trustees of Sabine Area Carpenter's Health & Welfare Fund

v. Don Lightfoot Home Builder , Inc., 3 and McKethan v. Texas Farm

Bureau. 4 These cases, as well as L avespere v. Niagara Machine and

Tool Works, 5 hold that a denial of summary judgment is an6 426 F.2d 858 (5th Cir.1970).

7 Id. at 862-63.

6 interlocutory order, which the court may reconsider and reverse any

time before entering final judgment. These cases do not, however,

decide whether the parties need to receive notice, or whether a

party should be given an opportunity to respond to new evidence

upon which the court bases its decision to vacate and reverse its

prior denial of summary judgment.

In Bon Air Hotel v. Time, 6 this court reviewed the di strict

court's reversal of a prior denial of summary judgment. In B on Air

Hotel, the judge who denied su mmary judgment retired, and his

successor requested comments on whether the court had authority to

reconsider and reverse the prior order denying summary judgment.

After receiving comments from both parties, the court vacated the

prior order and entered summary judgment. This court, referring to

the notice requirements of Rule 56(c), affirm ed the summary

judgment, noting that the parties had received pr oper notice and

were afforded an opportunity to present evidence demonstrating an

issue of material fact. 7

Bon Air Hotel and the language of Rule 56(c) indicate that an

adverse party must be given an opportunity to respond to a motion

for a summary judgment and the eviden ce upon which the motion is

b ased. Even in the cases cited by the appellees, the losing

parties had the opportunity to respond before judgment was rendered8 In Trustees of Sabine, the defendants, on the day of trial,

orally renewed their previously denied motion for summary judgment

on the same grounds previously presented to the court. The

plaintiffs did not object, and argued the motion orally. After

argument, the district court vacated its prior denial of summary

judgment and granted summary judgment. We found that the district

court's action was consistent with the policy of 56(c).

[Rule 56(c) ] is intended to give the opposing party

opportunity to prepare responsive pleadings and counter

affidav its. The trustees were not denied that

opportunity. Home Builders renewed motion for summary

judgment was based on the same gr ound it had urged

previously.... The trustees had already filed a written

response to this motion. Although they did not submit

affidavits or additional depositions, they had the

opportunity to do so.

Trustees of Sabine, 704 F.2d at 828 (citation and quotation

omitted, emphasis added).

In McKethan, a previousl y denied summary judgment was

granted after a trial on the merits, and thus after the

parties had submitted all their evidence. M cKethan, 996 F.2d

at 738.

In Lavespere, the plaintiff filed a response to the

renewed motion for summary judgment. Lavespere, 910 F.2d at

171.

7 against them. 8 Accordingly, we hold that, when a court is

considering v acating and reversing a prior denial of summary

judgment on the basis of newly presented evidence, the court must

give the adverse party notice and an opportunity to respond to such

evidence. This requirement will provide the party an opportunity

to refute the evidence and demonstrate how he intends to prove his

case at trial.

Appellee Golden argues that, because it was Millar's own

attorney who submitted the deposition to the court, Millar was not

entitled to notice or an opportunity to respond. Golden reasons

that the actions of Millar's withdrawing attorney were Mil lar's8

actions, and thus Millar needed no opportunity to respond to the

deposition, which, in effect, he himself presented to the court.

Golden's argument is without merit. Millar's attorney had already

been discharged, and we have found no authority suggesting that the

actions of a discharged attorney when filing a motion to withdraw

should be considered the actions of the party.

Accordingly, we VACATE the district court's order dismissing

the plaintiff's case against defendants Golden, Houg h ton, and

Garrett; we VACATE the district court's order vacating its prior

order denying summary judgment and granting summary judgment in

favor of defendants Golden, Houghton, and Garrett; and we REMAND

to the district court for further proceedings consistent with this

opinion.