Hammonds v. Dekalb County, Alabama et al
MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 4/20/17. (SAC )
2017 Apr-20 AM 10:11
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
DEKALB COUNTY, AL, et al.,
CASE NO.: 4:16-BE-1558-M
This § 1983 case alleges violations of various constitutional rights as well as the
Americans with Disabilities and is before the court on the Plaintiff’s motion for reconsideration.
(Doc. 30). Although the motion reflected that it was “unopposed” in its title, the Defendants’
response clarifies that, although they did not object to the filing of the motion, they do indeed
object to the motion’s substance and oppose reinstating the claims that the court previously
dismissed. (Doc. 31). The Plaintiff filed a reply. (Doc. 35).
For the reasons stated in this Memorandum Opinion, the court WILL GRANT IN PART
AND DENY IN PART the motion. The court WILL GRANT the motion to the limited extent
that the court WILL RECONSIDER its decision to dismiss WITH PREJUDICE the claims
asserted in Counts II and III against the County and the other Defendants in their official
capacities, and instead, will dismiss those claims WITHOUT PREJUDICE and provide the
Plaintiff with an opportunity to amend those claims. The court WILL DENY the motion in all
“[R]econsideration of an order is an extraordinary remedy and is employed sparingly.”
Rueter v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 440 F. Supp. 2d 1256, 1267-68 (N.D.Ala.
2006). A motion for reconsideration under Fed. R. Civ. P. 59 does not provide a mechanism for
a dissatisfied party to re-litigate a matter. Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007)
(“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”). The Eleventh Circuit has
recognized two grounds for granting a Rule 59 motion: " newly-discovered evidence or 
manifest errors of law or fact." Id. at 1343 (quoting In re Kellogg, 197 F.3d 116, 119 (11th Cir.
1999)). Courts in this district have recognized that an intervening change in controlling law is
also a ground for reconsideration and an exception to the law of the case doctrine. See, e.g.,
Summit Medical Center of Alabama, Inc. v. Riley, 284 F. Supp. 2d 1350, 1355 (M.D. Ala. 2003)
(addressing a Rule 59 motion); Oliver v. Orange Cty., Fla., 456 F. App'x 815, 818 (11th Cir.
2012) (listing the following exceptions to the law of the case doctrine, allowing a district judge to
reconsider a prior ruling: "(1) new evidence; (2) an intervening change in the law that dictates a
different result; or (3) that the prior decision was clearly erroneous and would result in manifest
In his motion, Mr. Hammonds does not present new evidence or an intervening change in
the law, but merely asserts that reconsideration would “avoid a manifest injustice.” (Pl.’s Br.
Doc. 30, at 2). The court does not agree with Mr. Hammonds’s position that dismissing Counts
II and III results in manifest injustice. And, to the extent Mr. Hammonds merely disagrees with
the court’s rulings and asks for a second bite at the proverbial apple of justice, that request is not
what Rule 59 is designed to address. See Arthur, 500 F.3d at 1343.
Mr. Hammonds asserts that, in dismissing Counts II and III, the court focused on the
ODO Report as providing insufficient support for the allegations of discrimination based on
disability but failed to acknowledge the additional allegations that DeKalb County and Officials
Theakston, Harris, and Martin discriminated and retaliated against him because of his disability.
The Complaint paragraphs he references (¶¶ 36, 56, 58, 65, 77, 85, 88, 95-105, 110-114, 116134, 140) presented allegedly wrongful actions, such as the inability to access the automated
medical kiosk and delay/denial of medical care, but provides no facts tying these allegedly
wrongful actions to discrimination because of his disability. What Mr. Hammonds fails to
acknowledge is that the Complaint does not allege facts that non-disabled inmates had access to
the medical kiosk or that, because of his disability, he was otherwise denied access to inmate
services, programs and activities to which non-disabled prisoners had access.
Put another way, allegations that the deprivations occurred, standing alone, do not state a
plausible claim: they fail to include facts that show that the deprivations occurred because of his
disability. Similarly, allegations reflecting that the deprivations were systemic and covered both
disabled and non-disabled prisoners do not state a plausible claim that the deprivations occurred
because of his disability. The court discussed this issue thoroughly in its January 25, 2017
opinion, and Mr. Hammonds’s disagreement with the court’s ruling does not provide grounds for
reconsideration of its decision regarding the allegations in the current Complaint.
However, Hammonds’s framing of this issue in his motion raises the question whether
the problem was merely inartful wording or the failure in the original complaint to include
sufficient facts that he could supply in an amended complaint. Accordingly, the court WILL
GRANT the motion for reconsideration to this extent: the court WILL AMEND its dismissal of
the claims against the County and the individual Defendants in their official capacities in Count
II and Count III from being WITH PREJUDICE to WITHOUT PREJUDICE and will give Mr.
Hammonds an opportunity to file, if he so chooses, a more definite statement of those claims
with facts supporting an allegation that the alleged discrimination and retaliation occurred
because of his disability. If he does not do so within the time period provided, however, the court
will again dismiss those claims with prejudice.
The court will not grant the motion for reconsideration for claims in Count II and III
asserted against Defendants Harris, Theakston and Martin in their individual capacities, because
only public entities may be liable under Title II of the ADA and § 504 of the Rehabilitation Act,
and any amendment of those claims asserted against the individuals would be futile. See 42
U.S.C. § 12132 (stating that no qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits of the services, programs,
or activities of a public entity . . . .”) & §12131 (defining “public entity” as “(A) any State or
local government; [or] (B) any department, agency, special purpose district, or other
instrumentality of a State or States or local government.”1); Edison v. Douberty, 604 F.3d 1307,
1308 (11th Cir. 2010) (“Only public entities are liable for violations of Title II of the ADA.”);
Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (except for the additional requirement
that the Defendant must be a recipient of federal funds, “[t]he standard for determining liability
under the Rehabilitation Act is the same as the standard under the Americans with Disabilities
Act. . . . .”); Garcia v. S.U.N.Y. Health Sciences Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir.
The definition would also include the “National Railroad Passenger Corporation, and
any commuter authority (as defined in section 24102(4) of Title 49).” 42 U.S.C. § 12131(1)(C).
2001) (affirming dismissal of complaint including ADA and RA claims, stating that “neither
Title II of the ADA nor § 504 of the Rehabilitation Act provides for individual capacity suits
against state officials.”); see also Owens v. Sec’y, Fla. Dep’t of Corr., 602 F. App’x 475, 47778 (11th Cir. 2015) ( per curiam) (affirming dismissal of action against individual prison
officials under ADA and RA “[s]ince only public entities may be liable under the ADA, Owens
fails to state ADA claims against [prison officials] in their individual capacities” and because the
standard for determining liability under the RA is the same as that under the ADA.); Badillo v.
Thorpe, 158 F. App’x 206, 211 (11th Cir. 2005) (affirming the dismissal of individual capacity
ADA and RA claims against an official, stating “there is no individual capacity liability under
Title II of the ADA or RA.”).
Having addressed the issues raised in Mr. Hammonds's motion, the court further notes
that, in their response, the Defendants attempt to argue an issue on reconsideration that they did
not argue in their motions to dismiss: that diabetes is not a disability within the meaning of the
ADA. The County did not raise this issue in its motion to dismiss and accompanying brief, but
rather, focused on arguments that dismissal was appropriate because the venue was improper and
because its liability was limited to the duty to build, maintain and fund the jail. (Cty. Br. Docs.
10 & 20). The individual Defendants’ initial brief specifically stated that they “do not challenge
whether Type I Diabetes [ ] qualifies as a disability or handicap under the Acts.” (Indiv. Defs.’
Br. Doc. 12, at 8 n. 2). In their response to the motion to reconsider, all Defendants “rest upon
the arguments previously asserted in their Motion to Dismiss [and accompanying briefs]”; then
they also rely for the first time on the argument that diabetes is not a disability, challenging here
what they specifically stated they were not challenging in their motion to dismiss. (Doc. 31).
Rule 59 does not provide a do-over and allow the parties an opportunity to raise
arguments that they chose not to raise at first. The Eleventh Circuit has explained that "[a] Rule
59(e) motion cannot be used to . . . raise argument[s] . . . that could have been raised prior to" the
ruling for which reconsideration is requested. Arthur, 500 F.3d at 1343 (quoting Michael Linet,
Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005)).
In the instant case, the Defendants could have raised in their motion to dismiss the issue
of whether Type I diabetes qualifies as a disability, but the individual Defendants specifically
acknowledged that they did not do so, and the County ignored the issue altogether. Accordingly,
the court will not address this argument for the first time on reconsideration of the motion to
The court will enter a separate Order consistent with this Memorandum Opinion.
Dated this 20th day of April, 2017.
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE
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