Scott v. City Of Mobile et al

Filing 92

ORDER ADOPTING 80 REPORT AND RECOMMENDATION, 81 REPORT AND RECOMMENDATION. Dft City of Mobile's 46 MOTION to Strike is DENIED IN PART & GRANTED IN PART. Portions of the 40 Amended Complaint are STRICKEN as set out. Cochran's 42 MOTION to Dismiss is GRANTED, & both remaining claims against him are DISMISSED. Plf's 86 Motion for Reconsideration is DENIED as set out. Signed by Senior Judge Callie V. S. Granade on 3/6/18. (copy mailed to Plf on 3/6/18) (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ANGELA SCOTT,
Plaintiff,
v.
CITY OF MOBILE, et al.,
Defendants.

)
)
)
)
)
)
)

Civil Action No. 17-143-CG-N

ORDER
This action is before the Court on two Report and Recommendations (“R&R”)
wherein the Magistrate Judge separately recommends that the City of Mobile’s
Motion to Strike be Granted in Part and Denied in Part (Doc. 80) and recommends
that Defendant, Sheriff Sam Cochran’s (“Cochran”), Motion to Dismiss be granted.
(Doc. 81).
Plaintiff has filed a document entitled “Plaintiff’s Motion for Reconsideration
and Incorporated Memorandum” (Doc. 86), to the R&R dated July 5, 2017 (Doc. 33),
which was adopted by this Court on July 28, 2017 (Doc. 38) in which she “moves the
Court to reconsider its rulings dismissing her state and federal law claims against
defendant Cochran in his official and individual capacities.” (Doc. 86). Therein,
Plaintiff asserts that this Court erred in adopting, not the R&R currently before this
Court, but the initial R&R of the Magistrate Judge which dismissed several other of
Plaintiff’s claim on the grounds that Cochran was immune from suit based on both
sovereign and Eleventh Amendment Immunity. (Doc. 86). Plaintiff also asserts
that the current R&R (Doc. 81) should not be adopted. This Court construes

1

Plaintiff’s motion as an objection to the pending R&R (Doc. 81) which prior to this
Order, has not been adopted, and also as a motion to reconsider its adoption of the
Magistrate Judge’s previous R&R (Doc. 33). Plaintiff does not object to the
Magistrate’s R&R relating to the City of Mobile’s Motion to Strike (Doc. 80).
I.

Background

The relevant background is as follows:
On April 20, 2015, Plaintiff was pulled over for a traffic violation by officers
from the City of Mobile Police Department. Officers determined that there was an
active warrant for Plaintiff’s arrest which resulted in her being arrested, searched,
and transported to Mobile County Metro Jail (“Metro”). Plaintiff filed a 42 U.S.C. §
1983 action against a number of Defendants, including members of the City of
Mobile Police Department, the City of Mobile, Alabama, Mobile County Sheriff Sam
Cochran, and the Alabama Safety Institute due to her arrest and search. (Doc. 1-1).
On April 12, 2017, the City of Mobile and Sam Cochran filed Motions to
Dismiss. (Docs. 15, 16). On July 5, 2017, the Magistrate Judge entered a R&R
recommending dismissal of Plaintiff’s state law claims and certain of her federal
law claims against Cochran on the grounds of sovereign immunity and/or Eleventh
Amendment Immunity, but permitted Plaintiff the opportunity to amend her
Complaint as to the Counts X and XI against Cochran in order to properly state a
claim against him in his individual capacity. (Doc. 33). Plaintiff did not object to
the R&R and on July 28, 2017, the undersigned adopted the R&R and granted the
City of Mobile’s and Cochran’s motions to dismiss in part. (Doc. 38). Plaintiff filed

2

an Amended Complaint as permitted on August 11, 2017. (Doc. 40). On August 21,
2017, Cochran filed a Motion to Dismiss Plaintiff’s Amended Complaint. (Doc. 42).
On January 23, 2018, the Magistrate Judge entered an R&R recommending
dismissal as to Counts X and XI against Cochran based on qualified immunity.
(Doc. 81). Plaintiff did not object within the allowed fourteen days, but on February
22, 2018, Plaintiff filed the instant Motion for Reconsideration and Incorporated
Memorandum asserting that the Court should reconsider its adoption of the initial
R&R (Doc. 33) and not adopt the most recent R&R (Doc. 81). (Doc. 86, generally). 1
On March 1, 2018, Cochran filed a Reply to Plaintiff’s Motion for Reconsideration.
(Doc. 87).
II.

Plaintiff’s Motion to Reconsider

Plaintiff’s motion states that she is seeking reconsideration as follows:
As to the former and latter reports [R&R’s], plaintiff seeks
reconsideration on a narrow issue relative to the entity on whose behalf
Sheriff Cochran was really acting in connection with the conduct plaintiff
alleged in the amended complaint. The former reports assumed the Sheriff
Cochran was acting on behalf of the State of Alabama and was therefore
immune from suit on both sovereign and Eleventh [A]mendment immunity.
The latter report, if the narrow issue for which plaintiff seeks reconsideration
of the former report is taken into consideration, the error in considering
qualified immunity defense under Rule 12(b)(6) becomes more apparent.

To the extent that Plaintiff’s filing is meant to be an objection to the previous R&R
of the Magistrate Judge, the same is untimely. The record clearly reflects that
Plaintiff was given fourteen days to object to the Report and Recommendation on
July 5, 2017, more than seven months ago and not only did she not object, but the
Report was adopted and the claims at issue were dismissed on July 28, 2017. (Doc.
38).
1

3

(Doc. 86 at 2).2 Plaintiff does not assert that the Court’s reasoning for initially
dismissing Cochran was incorrect, but only asserts now that the Court’s “conclusion
was made without the knowledge of the contractual agreement between the sheriff,
City and County [the “Agreement”] against the backdrop of Municipal Code § 4633.” (Id.) In that respect, Plaintiff asserts that the Agreement and § 46-33 served
to alter Cochran’s status from an “arm of the state” to an agent of the city, thus
barring his defense of Eleventh Amendment Immunity. (Id. at 3). Similarly,
Plaintiff argues that the Agreement and § 46-33 constituted a waiver of sovereign
immunity. (Id. at 3-4).
The decision to grant or deny a motion to reconsider is left to the discretion of
the trial court. Chapman v. AI Transport, 229 F.3d 1012, 1023–24 (11th Cir. 2000)
(en banc). “In the interest of finality and conservation of scarce judicial resources,
reconsideration of an order is an extraordinary remedy and is employed sparingly.”
Gougler v. Sirius Products, Inc., 370 F.Supp.2d 1185, 1189 (S.D. Ala. 2005) (citation

Plaintiff additionally asserts that it was in error for the Magistrate Judge to
consider Cochran’s Motion to Dismiss based on qualified immunity grounds
pursuant to 12(b)(6) “at this late stage of litigation, since he never filed an answer
to the amended complaint, and after he had already filed a post discovery motion for
summary judgment.” (Doc. 86 at 1-2). Plaintiff has not provided any support for her
position and both of the Magistrate Judge’s R&Rs address the ability of a party to
raise immunity on a motion to dismiss. (See Docs. 33, 81; See also St. George v.
Pinellas Cty., 285, F.3d 1334, 1337 (11th Cir. 2001)(en banc) (“We apply the
qualified immunity defense to dismiss a complaint at the 12(b)(6) stage where (1)
from the face of the complaint, (2) we must conclude that (even if a claim is
otherwise sufficiently stated), (3) the law supporting the existence of that claim –
given the alleged circumstances – was not already clearly established, (4) to prohibit
what the government-official defendant is alleged to have done, (5) before the
defendant acted.”)
2

4

omitted). Generally, “[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 injustice.”
Summit Medical Center of Alabama, Inc. v. Riley, 284 F.Supp.2d 1350, 1355 (M.D.
Ala. 2003). Also, “[m]otions for reconsideration should not be used to raise legal
arguments which could and should have been made before the judgement was
issued.” Sanderlin v. Seminole Tribe of Florida, 243 F.3d 1282, 1292 (11th Cir.
2001) (citations omitted). Plaintiff has not presented evidence of an intervening
change in controlling law or the availability of new evidence. 3 Therefore, this Court
construes Plaintiff’s motion to assert that reconsideration is necessary to correct
clear error or manifest injustice.
Plaintiff’s request for this Court to reconsider its previous findings is not well
taken. Plaintiff did not provide this Court with the Agreement to which she refers.
Nevertheless, the ordinance on which Plaintiff relies, which is only quoted in
Plaintiff’s Response to the City of Mobile’s pending Motion for Summary Judgment
(Doc. 83) and not her Motion for Reconsideration, does little to bolster Plaintiff’s
position. Municipal Code Section 46-33 states as follows: “The jail designated for
use by the city and the municipal prisoners when therein are under the control and
direction of the chief of police, who is vested with the power to prescribe and, in

It is unknown when the Agreement was made available to Plaintiff such that she
could use it to bolster her new position. Nevertheless, the city ordinance on which
Plaintiff relies is not new evidence and there is no indication that it was not
available to Plaintiff prior to this stage of the litigation.
3

5

person or by police officers, enforce rules for their conduct and discipline but rules
and regulations established by him may be changed by the mayor or city council at
any time." (Doc. 83 at 8). Plaintiff asserts the above language caused Cochran to
become an agent of the City of Mobile because the sheriff is required by state law to
operate the jail and the ordinance dictates that the chief of police maintain control
over municipal prisoners. Plaintiff has not provided any legal support that a city
ordinance can re-classify the status of a sheriff as set forth by state law or that, in
circumstances such as those present in this action, the sheriff is acting as an agent
of the city, not the state. Further, the ordinance, while describing that the chief of
police is to have control over the jail designated for use by the city, does not go so far
as to clearly establish that the sheriff, somehow becomes an agent of the city for
purposes of immunity. As a result, Plaintiff has not shown that the Court’s
previous adoption of the Magistrate’s R&R (Doc. 33) was in clear error or resulted in
a manifest injustice. Accordingly, Plaintiff’s Motion for Reconsideration (Doc. 86) is
due to be Denied.
II.

Objection to the pending R&R

Plaintiff also objects to the more recent Report and Recommendation (Doc.
81) which recommended dismissal against Cochran on qualified immunity grounds
and urges this Court to reconsider its recommendation on the premise that Cochran
is, for purposes of this action, an agent of the city. It is worth noting that Plaintiff’s
objection is untimely as the record clearly reflects that she must object to the R&R
within fourteen days of the R&R being entered, which in this action was February

6

6, 2018, sixteen days before Plaintiff filed her objection. (See Doc. 81).
Nevertheless, assuming Plaintiff’s objection was timely, it is still not compelling.
First, Plaintiff is not contesting the validity of the Court’s analysis in the R&R.
Instead, Plaintiff asserts that Cochran’s motion should be re-analyzed based on
Plaintiff’s new position that Cochran is an agent of the city. However, Plaintiff’s
position was not before the Magistrate prior to the R&R being entered, despite the
fact that Plaintiff could have raised such a position in her response to Cochran’s
Motion to Dismiss the Amended Complaint and failed to do so. As a result,
Plaintiff’s objection is due to be overruled. Second, Plaintiff again fails to provide
any legal support that Cochran’s status for purposes of immunity can be altered by
a city ordinance. Moreover, Plaintiff does not set forth how the Court’s analysis is
or would be incorrect with regard to those claims against him in his individual
capacity if he were considered and agent of the city, rather than an agent of the
state. Accordingly, Plaintiff fails to establish that if Cochran were ostensibly an
agent of the city, rather than of the state, that he would, as a result, be subject to
supervisory liability based on the facts asserted in Plaintiff’s Amended Complaint
rendering the Magistrate Judge’s R&R (Doc. 81) flawed. As a result, Plaintiff’s
objection is due to be overruled.
CONCLUSION
After due and proper consideration of the relevant pleadings and the issues
raised, and a de novo determination of those portions of the Recommendations to
which objections are made, the Recommendations of the Magistrate Judge made

7

under 28 U.S.C. § 636(b)(1)(B) and dated January 23, 2018 (Docs. 80 & 81) are
adopted as the opinion of this Court.
It is ORDERED that Defendant, City of Mobile’s Motion to Strike is
DENIED IN PART and GRANTED IN PART and that paragraph 39 of the
Amended Complaint (Doc. 40 at ¶ 39) and the portion of paragraph 86 stating
“[t]hat the City through its participation in providing for the design, layout and
construction of the metro jail and its intake area, and...” is STRICKEN. (Doc. 40 at
¶ 86).
It is further ORDERED that Cochran’s Motion to Dismiss (Doc. 42) is
GRANTED, and that both remaining claims against him are DISMISSED. It is
further ORDERED, Plaintiff’s Motion for Reconsideration (Doc. 86) is DENIED.
DONE and ORDERED this 6th day of March, 2018.
/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE

8