Billingsley v. Orr
MEMORANDUM OPINION AND ORDER DENYING 28 MOTION to Alter Judgment MOTION to Amend/Correct 26 Memorandum Opinion and Order, MOTION to Vacate as set out herein. Signed by Judge Virginia Emerson Hopkins on 3/9/2015. (JLC)
2015 Mar-09 PM 04:17
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
Case No.: 1:13-CV-1337-VEH
MEMORANDUM OPINION AND ORDER
Introduction and Procedural History
Plaintiff Kristopher Billingsley (“Mr. Billingsley”) initiated this civil rights case
on July 18, 2013, against Defendant Willie Orr (“Officer Orr”). (Doc. 1). Mr.
Billingsley complains about how Officer Orr treated him during a law enforcement
incident which occurred on or about June 1, 2012. (Doc. 1 at 3 ¶ 10). Mr. Billingsley’s
complaint, as originally filed, contained one federal count for deprivation of civil rights
brought pursuant to 42 U.S.C. § 1983 and three other counts arising under Alabama
law, all asserted against Officer Orr solely in his individual capacity.
Officer Orr filed a Motion for Summary Judgment (Doc. 23) on November 26,
2014, which sought dismissal of Counts One, Two, and Four of Mr. Billingsley’s
complaint. On January 13, 2015, the court granted in part and otherwise denied Officer
Orr’s Motion for Summary Judgment. (Doc. 26). More specifically, the court dismissed
Counts One and Four on summary judgment, leaving Counts Two and Three for trial.
Now pending before the court is Mr. Billingsley’s Motion To Amend, Alter or
Vacate (Doc. 28) (the “Motion”) filed on January 23, 2015. Within this Motion, Mr.
Billingsley challenges the court’s dismissal of the Fourth Amendment excessive force
portion of Count One only.1 (Doc. 28 at 1-2). Officer Orr opposed the Motion on
February 6, 2015. (Doc. 29).
A few days later, on February 10, 2015, Officer Orr filed a Brief in Support of
Motion for Summary Judgment on Count Three of Complaint (Doc. 30) (the “Brief”).
Mr. Billingsley responded to the Brief on February 24, 2015. (Doc. 31).
No other briefs or motions have been filed and Mr. Billingsley’s Motion is under
submission. For the reasons explained below, the Motion is DENIED. Further, to the
extent that Officer Orr’s Brief seeks to have this court enter summary judgment on
Count Three of Mr. Billingsley’s complaint, it is also DENIED.
Standards and Analysis
Mr. Billingsley’s Motion To Reconsider
Therefore, Mr. Billingsley has no objection to the court’s dismissal of Count One’s illegal
search and seizure claim, Count One’s due process allegations, or Court Four’s tort of outrage claim.
Although the court is well aware that it can modify any non-final summary
judgment opinion and order, a party who asks a court to reconsider must meet the
standard applicable to such a motion. Cf. Spellman v. Haley, No. 97-T-640-N, 2004
WL 866837, at *2 (M.D. Ala. Feb. 22, 2002) (“The district court, in its discretion, can
modify or vacate non-final orders at any point before final judgment.” (citing Fed. R.
Civ. P. 54(b))); Summit Medical Center of Ala., Inc. v. Riley, 284 F. Supp. 2d 1350,
1355 (M.D. Ala. 2003) (As a general rule, “[a] motion to reconsider is only available
when a party presents the court with evidence of an intervening change in controlling
law, the availability of new evidence, or the need to correct clear error or manifest
The court’s decision to dismiss excessive force as a purported independent
Fourth Amendment claim is tied to the Eleventh Circuit’s binding decisions in
Williamson v. Mills, 65 F.3d 155 (11th Cir. 1995) and Jackson v. Sauls, 206 F.3d 1156
(11th Cir. 2000), and the absence of an independent claim for excessive force pled by
Mr. Billingsley in his complaint. (See Doc. 26 at 13 (“The Eleventh Circuit’s decision
in Williamson (as reinforced by Jackson) means that Mr. Billingsley’s excessive force
claim is subsumed by his illegal seizure one.”)). Citing to Gilmour v. Gates, McDonald
and Co., 382 F.3d 1312, 1315 (11th Cir. 2004) and other binding cases, the court
additionally explained on summary judgment that “the Eleventh Circuit has made it
clear that it is procedurally inappropriate for a party to attempt to amend a pleading in
any critical manner by way of briefing on summary judgment in the absence of that
litigant also seeking leave to amend.” (Doc. 26 at 13 n.5 (emphasis added)).
In his Motion, Mr. Billingsley does not contend that Williamson, Jackson, or
Gilmour has been overruled by an intervening change in the law. Mr. Billingsley also
does not premise his Motion upon any new evidence, clear error, or manifest injustice.
Finally, Mr. Billingsley does not seek leave to amend his complaint to include a
separate count for Fourth Amendment excessive force that is unconnected to any claim
of illegal search and seizure.
Instead, Mr. Billingsley maintains in part:
This Court cites Williamson as the primary authority on this issue.
See generally Williamson v. Mills, 65 F.3d 155, 155 (11th Cir. 1995).
However, the present case in front of this Court is distinguishable from
Williamson. In Williamson, the plaintiff “does not argue that the force
used was more than that reasonably necessary to effect the arrest. He
argues that there was no need for any force as the force was used to
accomplish an unlawful arrest.” Williamson, 65 F.3d at 158. In the case
before this Court, Plaintiff does argue that the force used was more than
that reasonably necessary. In fact, that is the only position that Plaintiff
has taken throughout the entire litigation of this case. The Court in
Williamson did subsume the plaintiff’s excessive force claim in the
plaintiff’s false arrest claim, but only after determining that the defendant
was not entitled to qualified immunity against the plaintiff’s false arrest
claim. Id. Therefore, there was no need for a discrete excessive force
claim in Williamson because any use of force in an illegal stop or arrest
is considered excessive and taken into account when determining
damages based on the illegal stop or arrest claim. See Williamson, 65
F.3d at 158-59. In the present case, Plaintiff’s excessive force claim
should not be subsumed in Plaintiff’s illegal stop or arrest claim because
Plaintiff has never made an illegal stop or arrest claim.
Whether Defendant illegally stopped or arrested Plaintiff in the
present case has never been an issue. The only issue that Plaintiff and
Defendant have argued is whether Defendant used excessive force when
Defendant struck Plaintiff in the face. At the time of the alleged excessive
use of force, Plaintiff was neither under arrest nor subject to an illegal
stop. Williamson does not apply to the present case because the only
claim that has been argued is a violation of the Fourth Amendment
resulting from Defendant’s use of excessive force, not a violation of the
Fourth Amendment resulting from an illegal stop or arrest.
(Doc. 28 at 6-7 (emphasis by underlining added)).
Mr. Billingsley’s efforts to have this court reconsider its dismissal of Count
One’s excessive force allegations ignore two key points that were made by the court
when deciding summary judgment. First, paragraph 13 of Count One of his complaint
unambiguously asserts that Officer Orr “violated [Mr. Billingsley]’s Fourth Amendment
rights against an unreasonable search and seizure as there existed no valid and
supportable probable cause or reasonable suspicion that [Mr. Billingsley] had
committed a crime.” (Doc. 1 at 3-4 ¶ 13 (emphasis added)). Therefore, it is simply not
true that Mr. Billingsley “has never made an illegal stop or arrest claim” under the
Fourth Amendment. To the contrary, illegal search and seizure is the specific Fourth
Amendment claim contained in his complaint.
Second, while the parties’ discovery and arguments may have focused solely on
Officer Orr’s alleged use of excessive force on Mr. Billingsley as if he had properly
pled it as an independent Fourth Amendment claim, under Gilmour (and other Eleventh
Circuit cases), arguments made by counsel in briefs cannot amend a pleading, and
district courts have been criticized by the Eleventh Circuit for allowing this disfavored
practice to stand on summary judgment. See Flintlock Const. Servs., LLC v.
Well-Come Holdings, LLC, 710 F.3d 1221, 1227 (11th Cir. 2013) (criticizing district
courts for practice of “ignor[ing] what the respective parties alleged in their complaint
and answer and to [instead] consider their claims and defenses as depicted in the
memoranda they filed in support of or in opposition to a motion for summary
Instead, it was incumbent upon Mr. Billingsley to seek leave to amend his
complaint and clarify that he was asserting a Fourth Amendment excessive force claim
entirely separate from his Fourth Amendment illegal search and seizure claim asserted
in Count One. To date, Mr. Billingsley has not sought permission for such an
amendment. Instead, he has ineffectively chosen to quibble over the court’s excessive
force analysis on summary judgment without regard to key underpinnings behind the
Mr. Billingsley does not mention, much less discuss, the pleading-related principles
embraced by Gilmour, Flintlock, and other similar Eleventh Circuit decisions.
Therefore, Mr. Billingsley’s Motion is DENIED.
Officer Orr’s Motion To Modify Scheduling Order
Although Officer Orr indicates within his Brief that he simultaneously filed a
Rule 60(b)(1) motion, as Mr. Billingsley correctly points out, no such motion appears
on CM/ECF on or after February 10, 2015. Rule 60(b)(1) permits a court to “relieve
a party . . . from a final judgment, order, or proceeding for . . . mistake, inadvertence,
surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). However, even if the court
were inclined to excuse Officer Orr for the procedural error of not including a Rule
60(b)(1) motion when filing his Brief, he still would not be entitled to the relief he has
requested (i.e., granting summary judgment in his favor on Count Three because of an
“inadvertent failure to address [it]” (Doc. 30 at 1)) by virtue of Rule 16, which governs
Under the Scheduling Order (Doc. 14) (as subsequently modified on August 29,
2014), the deadline to file dispositive motions expired on November 28, 2014. Officer
Orr filed his Motion for Summary Judgment two days before that deadline and did not
address Count Three of Mr. Billingsley’s complaint in any manner. Consequently, in
order for the court to consider the merits of Officer Orr’s Brief, it would need to reopen
its Scheduling Order.
Further, to the extent that Officer Orr is implicitly asking for such relief under
Rule 16, he has not shown “good cause” for the court to do so and, accordingly, the
court declines his implicit request.2 See, e.g., Fed. R. Civ. P. 16(b)(4) (“A schedule
may be modified only for good cause and with the judge’s consent.”); Sosa v. Airprint
Sys., Inc., 133 F.3d 1417, 1418, 1419 (11th Cir. 1998) (per curiam) (noting that
scheduling orders may be modified “only upon a showing of good cause” and holding
that a disregard of the “good cause” requirement “would render scheduling orders
meaningless and effectively would read Rule 16(b) and its good cause requirement out
of the Federal Rules of Civil Procedure”) (internal quotation marks omitted); Young v.
City of Gulf Shores, No. 07-0810-WS-M, 2009 WL 321221, at *1-*2 (S.D. Ala. Feb.
5, 2009) (describing and applying Rule 16(b)’s good cause standard to preclude
plaintiff from amending complaint past deadline contained in scheduling order).
Therefore, the relief requested by Officer Orr in his Brief is also DENIED.
Mr. Billingsley’s Motion and the relief requested by Mr. Orr in his Brief are both
DENIED. Further, the final pretrial conference set for March 25, 2015, at 1:30 p.m.,
will go forward as scheduled.
The court notes that Officer Orr was put on notice of his failure to address Count Three
when Mr. Billingsley filed his opposition to summary judgment on December 17, 2014. (See Doc. 22
at 27 (“Defendant argues that summary judgment should be granted in his favor on Count II and
Count IV of Plaintiff’s Complaint.”)). Yet Officer Orr inexplicably waited nearly two entire months
after that date before seeking to reopen the dispositive motion deadline on that claim.
DONE and ORDERED this 9th day of March, 2015.
VIRGINIA EMERSON HOPKINS
United States District Judge
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