Fisher v. City of Montgomery et al
MEMORANDUM OPINION AND ORDER denying the 34 motion to alter or amend the final judgment; denying the 36 motion to supplement the record; denying as moot the 41 motion to strike. Signed by Honorable William Keith Watkins on 5/5/2011. (Attachments: # 1 Civil Appeals Checklist)(br, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
THE CITY OF MONTGOMERY,
a municipality, et al.,
CASE NO. 2:10-CV-189-WKW [WO]
MEMORANDUM OPINION AND ORDER
Before the court are Plaintiff Wiley Fisher’s (“Mr. Fisher”) motion to alter or amend
the final judgment and motion to supplement the record (Docs. # 34, 36). Defendants, the
City of Montgomery and Officers Loria, Peterson, and Stallworth, responded (Doc. # 40),
and moved to strike (Doc. # 41) exhibit A of Mr. Fisher’s motion to supplement the record.
Mr. Fisher makes two arguments in his motion to alter or amend the final judgment: (1) that
the court incorrectly calculated the statute of limitations; and (2) that the court improperly
excluded Officer Peterson’s conduct on March 2, 2008, in assessing Mr. Fisher’s municipal
liability claim for “denial of medical treatment.” Finding no errors of law or fact in the
Memorandum Opinion and Order (“Mem. Op.” (Doc. # 32)), Mr. Fisher’s motions are due
to be denied.
Rule 59 of the Federal Rules of Civil Procedure governs motions to alter or amend the
judgment. “The only grounds for granting a Rule 59 motion are newly-discovered evidence
or manifest errors of law or fact.” Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007)
(internal quotation marks and citations omitted). “A Rule 59(e) motion cannot be used to
relitigate old matters, raise argument or present evidence that could have been raised prior
to the entry of judgment.” Id. (internal quotation marks and citations omitted).
Calculating Time for Purpose of the Statute of Limitations
Mr. Fisher argues that the court erred in finding that his non-continuing March 2, 2008
claims were barred by the two-year statute of limitations. (Doc. # 35, at 1-2.) Mr. Fisher
cites Rule 6(a)(1) of the Federal Rules of Civil Procedure, which provides that in calculating
a time period that is “stated in days or a longer unit of time,” the court “exclude[s] the day
of the event that triggers the period.” The court followed Rule 6(a)(1) when it found that by
filing his suit on March 3, 2010, Mr. Fisher’s March 2, 2008 claims were barred by the twoyear statute of limitations. (Mem. Op. 14.); see, e.g., Maloy v. Phillips, 64 F.3d 607, 608
(11th Cir. 1995). To put it simply, the day the triggering event occurs is “Day 0” for
purposes of the statute of limitations, and the two-year anniversary of “Day 0” (not “Day 0”
plus one day) is the last day of the statute of limitations period.
Mr. Fisher had until 11:59 p.m. on March 2, 2010, to file his suit for the claims that
occurred and accrued on March 2, 2008, but he failed to do so. Mr. Fisher fails to
demonstrate manifest error in part V.A of the Memorandum Opinion and Order, and his Rule
59(e) motion is due to be denied on this claim.
Municipal Liability for Deliberate Indifference to Medical Needs
Mr. Fisher argues that the court erred in granting summary judgment on his municipal
liability claim against the City for its policy or custom that allegedly proximately caused a
“denial of medical treatment” violation. (Doc. # 35, at 3-5; see also Mem. Op. 20-21.) More
specifically, Mr. Fisher claims that the court erred in finding that, “[b]ecause Mr. Fisher has
not produced any evidence of the identity of the individuals causing his violation, the court
is unable to conduct the threshold inquiry into whether there exists an underlying
constitutional violation for a deliberate indifference to a medical need.” (Mem. Op. 20-21.)
Mr. Fisher now asserts that the requisite inquiry can be made for the purposes of municipal
liability because Officer Peterson allegedly denied medical care to Mr. Fisher on March 2,
2008, outside the Montgomery City Jail. (Doc. # 35, at 3-4.)1 The City opposes this
argument on the basis that Mr. Fisher made no deliberate indifference to medical needs claim
against Officer Peterson, any such claim would be barred by the statute of limitations, and
Mr. Fisher is attempting to “graft” Officer Peterson’s identity onto the alleged actions of jail
officials from March 2-3, 2008, in the Montgomery City Jail in order to escape summary
Mr. Fisher’s argument fails. First, Officer Peterson played no role in Mr. Fisher’s
timely claims against the City for deliberate indifference to medical needs, and Mr. Fisher
failed to provide evidence of the identities of the individuals involved in those timely claims.
(Mem. Op. 18 (“Mr. Fisher has failed to raise a genuine issue of material fact that the
Defendant police officers were personally involved in the events giving rise to his timely
Mr. Fisher wrongly characterizes the Memorandum Opinion and Order as finding that the
continuing violation doctrine “made viable both the March 2, 2008, and March 3, 2008, constitutional
medical denial claims” underpinning his claim of municipal liability. (Doc. # 35, at 3.) The
Memorandum Opinion and Order speaks for itself: “Mr. Fisher’s allegations of constitutional violations
for the City’s medical inattention during his jail cell confinement from March 2 through March 3, 2008
constitute a continuing injury that did not accrue until he was removed from the jail cell on March 3,
2008.” (Mem. Op. 16 (emphasis added).)
allegations of constitutional deprivations.”) (emphasis added).) Perhaps the order would
have been more clear had it stated, “Because Mr. Fisher has not produced any evidence of
the identity of the individuals causing his [timely deliberate indifference to medical needs]
violation, the court is unable to conduct the threshold inquiry into whether there exists an
underlying constitutional violation for a deliberate indifference to a medical need.” (Mem.
Op. 20-21.) The conduct of Officer Peterson on March 2, 2008, is separate and distinct from
the conduct of the jail officials on March 2-3, 2008. Any deliberate indifference to medical
needs claim against Officer Peterson occurred and accrued on March 2, 2008, and is
therefore barred by the statute of limitations. Chappell v. Rich, 340 F.3d 1279, 1283 (11th
Cir. 2003) (discussing accrual of a § 1983 cause of action); (see Mem. Op. 12-13.). Mr.
Fisher cites no law, and the court is not aware of any, allowing a plaintiff to base a viable
municipal liability claim solely on an underlying constitutional violation that is time-barred.
Second, and perhaps more important, Mr. Fisher’s opposition to summary judgment
on municipal liability for “denial of medical treatment” makes no mention of a claim against
Officer Peterson. (Doc. # 25, at 10-12.) Mr. Fisher included a “Statement of Facts” in his
opposition to summary judgment, but otherwise left it to this court and Defendants to discern
the scope of his claims, the evidence in support of such claims, and the law governing those
claims. (Doc. # 25, at 1-4, 10-12; Mem. Op. 10 n.12.) In his argument in opposition to
summary judgment, Mr. Fisher stated that “the facts supporting Plaintiff’s Section 1983
constitutional claims of excessive force and denial of medical care are well plead [sic],
specific, and are anything but ‘vague and conclusory.’” (Mem. Op. 10 (emphasis added).)
The source of these argued facts was a pasted and underlined version of the pleadings in his
Complaint. (Doc. # 25, at 10-11.) This citation was followed by argument concerning
federal pleading standards, standards hardly pertinent to a motion for summary judgment.
(Doc. # 25, at 11-12.)
The court notes two serious deficiencies in Mr. Fisher’s opposition to summary
judgment on municipal liability for “denial of medical treatment.” First, the underlined
pleadings made no mention of any Defendant, much less Officer Peterson, “turn[ing] away
the Fire Medics” as a stated factual basis for his “denial of medical treatment” claim. (Doc.
# 25, at 10-11.) In fact, the cited pleadings make no mention of a “denial of medical
treatment” claim at all.
Second, in his opposition, Mr. Fisher failed to cite to any evidentiary support for his
argument that there were “facts supporting [Mr. Fisher’s] Section 1983 constitutional claim
of . . . denial of medical care.” The City met its burden of showing that there was no genuine
issue of material fact as to the underlying “denial of medical treatment” claim; thus, the
burden shifted to Mr. Fisher to establish, with evidence beyond the pleadings, that a genuine
issue of fact material to each of his claims for relief existed. Shiver v. Chertoff, 549 F.3d
1342, 1343 (11th Cir. 2008); Ryan v. Int’l Union of Operating Eng’rs, Local 675, 794 F.2d
641, 643 (11th Cir. 1986) (“A party may not rely on his pleadings to avoid judgment against
him.”); (Mem. Op. 16-22; Doc. # 26, at 6-7.). Mr. Fisher failed to meet his burden, neither
citing the elements of a claim for deliberate indifference to medical needs, nor citing to
evidence, beyond the pleadings, in support of such elements. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986) (Applicable substantive law identifies those facts that are
material.); Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995)
(“There is no burden upon the district court to distill every potential argument that could be
made based upon the materials before it on summary judgment. Rather, the onus is upon the
parties to formulate arguments.”) (internal citations omitted); (Fed. R. Civ. P. 56(c)(1) (“A
party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing
to particular parts of materials in the record . . . or other materials.”); Fed. R. Civ. P. 56(c)(3)
(“The court need consider only the cited materials, but it may consider other materials in the
record.”); Fed. R. Civ. P. 56(e)(3) (“If a party fails to properly support an assertion of fact . .
. , the court may . . . grant summary judgment if the motion and supporting
materials – including the facts considered undisputed – show that the movant is entitled to
Mr. Fisher included a Statement of Facts at the opening of his opposition to summary
judgment, but did nothing to argue how those stated facts were material to the elements of
a municipal liability claim for deliberate indifference to medical needs. If any error was
made concerning Mr. Fisher’s “denial of medical treatment” claim against the City, that error
was reaching the merits of his claim at all. Mr. Fisher fails to demonstrate manifest error in
part V.B of the Memorandum Opinion and Order, and his Rule 59(e) motion is due to be
denied on this claim.
Accordingly, it is ORDERED that Mr. Fisher’s motion to alter or amend the final
judgment (Doc. # 34), and motion to supplement record (Doc. # 36) are DENIED. It is
further ORDERED that Defendants’ motion to strike (Doc. # 41) is DENIED as moot.
DONE this 5th day of May, 2011.
/s/ W. Keith Watkins
UNITED STATES DISTRICT JUDGE
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