Timothy Zinkand v. Timothy S. Brown

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 TIMOTHY ZINKAND,
Plaintiff-Appellant,
v.
TIMOTHY S. BROWN,
Defendant-Appellee,
and No. 05-2170 
ANNE ARUNDEL COUNTY POLICE
DEPARTMENT; K. EDMONDS,
Detective; T. A. GIUNTA, Detective;
UNNAMED DETECTIVES AND POLICE
OFFICERS,
Defendants. 
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, District Judge.
(CA-03-1057-JFM)
Argued: October 25, 2006
Decided: March 1, 2007
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.

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COUNSEL
ARGUED: Neal Cormac Baroody, BAROODY & O’TOOLE, Balti-
more, 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 Attor-
ney, ANNE ARUNDEL COUNTY OFFICE OF LAW, Annapolis,
Maryland, for Appellee.
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 ren-
dered 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.
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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 (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.
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 specifi-
cally agreeing that he resisted arrest. The trial court, following Mary-
land 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 defen-
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dants 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 Zin-
kand 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 defen-
dants. 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 memo-
randum, and the motion was scheduled for argument before the dis-
trict court.
It is not apparent from the record whether the supplemental memo-
randum 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
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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 differ-
ences 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 spe-
cifically ruled on "the motion to alter or amend." J.A. 235. No objec-
tion 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 accommo-
date 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 consid-
ered 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 pre-
sented previously). Here the district court was dealing with a situation
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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 dis-
trict court saw fit to consider the new evidence. Because the defen-
dants 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 defen-
dant.1 If this had been the only issue, obviously the district court
would have granted the Rule 59(e) motion. But the district court
viewed the legal effect of the Alford plea as dispositive. In the view
of the district court, principles of judicial estoppel precluded Zinkand
after his plea from challenging the officer’s right to use force to
remove him from the car, put him on the ground, and handcuff him.
This view then led the district court to conclude that no clear legal
error had occurred in its previous ruling, and the court therefore
denied Zinkand’s motion to alter or amend. We believe the district
court erred in its application of principles of judicial estoppel.
Judicial estoppel is a principle developed to prevent a party from
1For example, with regard to the injury he sustained, Zinkand submit-
ted a statement from his doctor that Zinkand had both a cervical herni-
ated disc and a lumbar herniated disc, both of which the doctor was
prepared to attribute to his encounter with law enforcement. This evi-
dence had not been available to the district court when the court had pre-
viously believed Zinkand suffered only a minor laceration. With this new
evidence from Zinkand, both parties and the district court believed a trial
was warranted and the issue of the extent of Zinkand’s injuries was not
presented on appeal, nor was qualified immunity.
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taking a position in a judicial proceeding that is inconsistent with a
stance previously taken in court. See John S. Clark Co. v. Faggert &
Frieden, P.C., 65 F.3d 26, 28 (4th Cir. 1995). Three elements must
be satisfied before judicial estoppel will be applied. "First, the party
sought to be estopped must be seeking to adopt a position that is
inconsistent with a stance taken in prior litigation." Lowery v. Stovall,
92 F.3d 219, 224 (4th Cir. 1996). The position at issue must be one
of fact as opposed to one of law or legal theory. Id. "Second, the prior
inconsistent position must have been accepted by the court." Id.
Lastly, the party against whom judicial estoppel is to be applied must
have "intentionally misled the court to gain unfair advantage." Ten-
neco Chems., Inc. v. William T. Burnett & Co., 691 F.2d 658, 665 (4th
Cir. 1982). This bad faith requirement is the "determinative factor."
John S. Clark Co., 65 F.3d at 29.
In the case before us, we find that without specifically reviewing
the first two factors, the third factor determines that judicial estoppel
was inappropriate. The district court specifically stated in its ruling on
judicial estoppel that it was "not suggesting subjective bad faith on
the part of Mr. Zinkand." J.A. 240. Indeed, our own examination of
the proceedings in state court confirms an intent on the part of Zin-
kand to obtain the very favorable sentence of probation without an
entry of judgment against him and to preserve the same position he
asserts in this case: that he did not give Brown reason to use the force
that caused his head injury. Without bad faith, there can be no judicial
estoppel.2 Accordingly, we are constrained to conclude that the dis-
trict court made a clear error of law and consequently abused its dis-
cretion in denying the motion to alter or amend. For these reasons, we
hereby reverse the district court’s decision and remand the case for
further proceedings consistent with this opinion.
REVERSED AND REMANDED
2It is this absence of bad faith that distinguishes this case from Lowery,
in which the plaintiff, Lowery, had pled guilty to the criminal offense
and bad faith was deemed to exist. See Lowery v. Stovall, 92 F.3d 219,
225 (4th Cir. 1996).
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WIDENER, Circuit Judge, dissenting:
I respectfully dissent for several reasons. I would affirm.
I.
The majority opinion describes itself:
The district court denied [plaintiff] 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.
As described by the majority, the only claim of Zinkand before us
is "of excessive force." But the majority opinion does not deal with
the claim it has just described, and, more importantly, does not deal
with the precise factual findings of the district court, to which excep-
tion is not taken. They are, copied verbatim from the opinion of the
district court:
The materials submitted by defendants in support of their
motion establish beyond doubt that there was ample proba-
ble cause to arrest plaintiff. Plaintiff was observed by offi-
cers to be involved in an undercover drug [heroin] purchase
as the apparent "stash" man. 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 plea2
to a charge of resisting arrest, and this resistence precipi-
tated 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.
2 After taking the Alford plea and hearing allocution, the state
court judge entered a disposition of probation before judgment.
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I submit the reversal of the district court’s decision in favor of the
defendant, in the face of the facts found by the district court, stated
just above, is patently erroneous. To permit plaintiff’s claim to go for-
ward "on the claim of excessive force," as described in the majority
opinion, slip p.2, should not be possible in the face of the finding that
plaintiff "suffered only a minor laceration, and the use of force was
reasonable as a matter of law." J.A. 180.
II.
In my opinion, the majority has erred, and the judgment of the dis-
trict court should be affirmed for a second separate reason.
The plaintiff entered into a plea bargain with the State of Maryland
in which he not only received absolution from the charge of obviously
felonious participation in the sale of heroin, he received a disposition
of probation before judgment on the charge of resisting arrest. Mary-
land lived up to her end of the bargain, but Zinkand was determined
to eat his cake and have it, too. Only a week later, he sued the offi-
cers.
In the case of Lowery v. Stovall, 92 F.3d 219 (4th Cir. 1996), a case
on facts so similar as to be persuasive, even if not controlling, one
Lowery had been prosecuted for a felony under the Virginia Feloni-
ous Assault Statute, Va. Code § 18.2-51.1, following a fight with two
arresting officers. Lowery pleaded guilty to the charge, which sub-
jected him to the possibility of 40-60 years in prison. In return for the
guilty plea, the Commonwealth agreed to recommend that Lowery be
sentenced to only 10 years, to be suspended after the service of two
years in prison. That sentence was entered by the trial court. After the
sentence, Lowery sued Stovall and Redd, the arresting officers, argu-
ing that he did not maliciously attack Redd. Our decision is best
stated by the panel in Lowery at p.225:
For the reasons aptly expressed by Professor Hazard [in 66
Cornell L. Rev. 564, 578 (1981)], we find this argument ‘too
much to take’:
Particularly galling is the situation where a criminal con-
victed on his own guilty plea seeks as a plaintiff in a subse-
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quent civil action to claim redress based on a repudiation of
the confession. The effrontery or, as some might say it,
chutzpah, is too much to take. There certainly should be an
estoppel in such a case.
III.
A third reason to affirm the district court is that Officer Brown is
entitled to qualified immunity, as Lowery so held. 92 F.3d at 226.
IV.
A fourth reason to affirm is that what has come to be known as an
Alford plea should not be construed, as has been done here by the
majority, to open the door to recovery under 42 U.S.C. § 1983 which
would otherwise be closed.
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