Rogers v. City Of Selma et al

Filing 57

ORDER DENYING Plf's 47 Motion to Alter or Amend Judgment as set out. Signed by Senior Judge Callie V. S. Granade on 5/19/2016. (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
MICHAEL DONALD ROGERS
Plaintiff,
vs.
CITY OF SELMA, et al.,
Defendants.

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) CIVIL ACTION NO. 14-586-CG-M
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ORDER

This matter is before the Court on the motion to alter or amend
judgment filed by Plaintiff Michael Donald Rogers (Doc. 47) and opposition
thereto filed by Defendants City of Selma, Police Chief William Riley, Officer
Curtis Muhannad, and Investigator Ray Blanks (collectively, “Defendants”)
(Doc. 50). For the reasons stated below, the motion to alter or amend the
judgment is due to be denied.
DISCUSSION
Plaintiff brought suit against Defendants based on alleged violations of
42 U.S.C. § 1983 and various laws of the State of Alabama. (Doc. 1).
Defendants’ motion for summary judgment on all claims was granted by the
Court on April 8, 2016. (Doc. 41). Plaintiff now asks the Court to alter or
amend its earlier judgment based on four arguments.
Pursuant to the Federal Rules of Civil Procedure, Rule 59(e), a “motion
to alter or amend a judgment must be filed no later than 28 days after the

entry of the judgment.”1 The decision whether to alter or amend a judgment
is “committed to the sound discretion of the district judge.” Mincey v. Head,
206 F.3d 1106, 1137 (11th Cir. 2000) (citation omitted). Reconsideration is
characterized as an “extraordinary” remedy that the court should employ
“sparingly.” Gougler v. Sirius Products, Inc., 370 F. Supp. 2d 1185, 1189
(S.D. Ala. 2005) (citations omitted). Generally courts have recognized three
grounds that justify reconsidering an order: (1) an intervening change in
controlling law; (2) the availability of new evidence; and (3) the need to
correct clear error or manifest injustice. Summit Medical Center of Ala., Inc.
v. Riley, 284 F. Supp. 2d 1350, 1355 (M.D. Ala. 2003). In this case, Plaintiff
timely filed his Motion to Alter or Amend Judgment but does not argue
intervening change in controlling law or new evidence. Therefore, the Court
reviews its prior decision for clear error or manifest injustice.
First, Plaintiff argues that “[t]he inadvertent failure to properly
notarize the affidavits [offered in opposition to summary judgment] is
excusable neglect” and his corrected versions should be reconsidered. (Doc.
47, p. 1). Plaintiff contends that Rule 60(b)(1) calls for relief and
reconsideration. Defendants aver that this argument is meritless because
In his motion, Plaintiff makes no mention to the Federal Rule of Civil
Procedure he generally relies upon for relief, much less outline the
appropriate legal standard. He does briefly mention Rule 60(b)(1) but only in
context of the affidavits provided in opposition to summary judgment. But
Plaintiff does title his motion a “Motion to Alter or Amend Judgment” and
request that the Court “review and [ ] alter or amend its judgment ….” (Doc.
47, p. 1). Thus, the Court construes this language to mean that Plaintiff
seeks relief under Rule 59(e).
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Plaintiffs failed to show “good cause” for the errors in drafting the selfdescribed “affidavits”. (Doc. 50, p. 2). The Court agrees.
“On motion and just terms, the court may relieve a party … from a
final judgment” when the judgment results from excusable neglect. Fed. R.
Civ. P. 60(b)(1); see also S.E.C. v. Simmons, 241 Fed. App’x 660, 663 (11th
Cir. 2007) (finding “claims of attorney error must be made under the more
specific Rule 60(b)(1)”). The Eleventh Circuit has “demonstrated its wariness
of grants of Rule 60(b)(1) relief for excusable neglect based on claims of
attorney error.” Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1115 (11th Cir.
1993); see also Revere v. McHugh, 362 Fed. App’x 993, 999 (11th Cir. 2010)
(applying Cavaliere); Simmons, 241 Fed. App’x at 663 (same). As
unfortunate as it may be, attorney “oversight” does not justify Rule 60(b)
relief in the absence of good cause even though it may “penalize innocent
clients for the forgetfulness of their attorney.” Solaroll Shade and Shutter
Corp. v. Bio-Energy Sys., Inc., 803 F.2d 1130, 1132 (11th Cir. 1986).
Here, Plaintiff does not show good cause for deficiencies in the selfdescribed “affidavits”. Instead, Attorney Toure provides another affidavit
averring that she did not instruct the notary to insert the appropriate
language and has “no experience in this type of litigation.” (Doc. 47-1, p.1)
Both arguments are unavailing. It strains reason that affidavits and
declarations require a requisite level of experience in any one particular type
of litigation to appropriately oppose summary judgment. Moreover, the

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exclusion of Plaintiff’s affidavits “is not to be interpreted to say that a timely
motion to correct such an error would be denied in every case.” (Doc. 41, p.
5). Plaintiff had ample time correct the deficiencies before the Court entered
summary judgment. That time has passed. Now, he failed to provide facts
showing that he was “prevented … from submitting” a motion to correct the
deficiencies “in a timely manner” before the undersigned rendered a decision.
First Nat’l Life Ins. Co. v. California Pacific Life Ins. Co., 876 F.2d 877, 882
(11th Cir. 1989). Thus, the Court finds that no excusable neglect exists in the
preparation of the affidavits and the earlier decision to exclude the affidavits
is not clear error.
Plaintiff’s second argument insists that “the Court did not consider
whether Defendants met [their] burden of showing that Plaintiff’s arrest for a
misdemeanor was within their discretionary authority” when the
misdemeanor was not committed in Defendant Officers’ presence but
captured by the Selma Police Department’s video surveillance system. (Doc.
47, p. 3). As to his third argument, Plaintiff contends that § 11-47-992 of the
Code of Alabama should have been considered in the Court’s analysis of
Count III because it provides that “a municipality [may] be held liable for an
Plaintiff cites to § 11-47-99 for the proposition that a municipality is liable
for the negligent, carless, or unskillful acts of its officers, but the undersigned
finds no such section in the Code of Alabama. However, Code of Alabama §
11-47-190 does allow for recovery against a municipality when “injury or
wrong was done or suffered through the neglect, carelessness, or
unskillfulness of some … officer … of the municipality engaged in work
therefor and while acting in the line of his or her duty ….” Thus, it is
presumed that Plaintiff’s citation was in error and § 11-47-190 was intended.
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injury ‘suffered through neglect, carelessness[,] or unskillfulness.” Id. at 2.
Defendants respond that both arguments are improper for the same reason:
they attempt to raise arguments Plaintiff has not previously made. (Doc. 50,
p. 3).
The United States Supreme Court reasoned, “Rule 59(e) permits a
court to alter or amend a judgment, but it may not be used to … raise
arguments … that could have been raised prior to the entry of judgment.”
Exxon Shipping Co. v. Baker, 554 U.S. 471, 486 n.5 (2008); see also
Richardson v. Johnson, 598 F.3d 734, 740 (11th Cir. 2010) (“A motion for
reconsideration cannot be used to relitigate old matters, raise argument or
present evidence that could have been raised prior to the entry of judgment.”)
Plaintiff’s second and third arguments were not made prior to being raised in
the present motion. Therefore, these new arguments are improper and do not
call for alteration or amendment of the judgment.3

But even if Plaintiff had raised these arguments in his summary judgment
response, the outcome would be the same. In the sense that Plaintiff argues
that the misdemeanor was committed outside the officers’ presence, a
warrantless arrest for a misdemeanor committed outside the officer’s
presence does not violate the Fourth Amendment as long as it was supported
by probable cause. Crosby v. Monroe County, 394 F.3d 1328, 1333 (11th Cir.
2004). Thus, Plaintiff’s argument is not cognizable since the Court concluded
probable cause existed. Also, commission of a misdemeanor “within an
officer’s presence or view” has been applied more liberally than Plaintiff now
insists. “The term ‘in his presence’ has been construed to authorize an arrest
where an officer was apprised or could infer through the operation of any of
his senses that a misdemeanor was being committed or attempted.”
Burdeshaw v. Snell, 365 F. Supp. 2d 1194, 1199 (M.D. Ala. 2005). Further, at
least one Alabama court has found that a misdemeanor is committed in an
officer’s presence when a third party informs an officer of the commission of a
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Plaintiff’s final ground for alteration or amendment is that no
evidentiary basis exists from which to infer that Defendant Officers were in a
state of heightened alert when they went to Plaintiff’s home. (Doc. 47, p. 4).
As Defendants correctly posit, this part of the Court’s analysis was not
dispositive in concluding that Defendants were due summary judgment for
Plaintiff’s excessive force claim. (Doc. 50, p. 4). Instead, Plaintiff’s excessive
force claim turned on whether more than de minimis force was applied when
officers placed Plaintiff in handcuffs then in the back of the police car. This
answer remains in the negative.
Thus, Plaintiff failed to show that the summary judgment was the
product of clear error or resulted in manifest injustice, and this Court finds
no exceptional circumstances that warrant relief from the Court’s previous

misdemeanor and the officer then finds evidence supporting the basis of the
misdemeanor from where the suspect is removed. See Jakes v. Alabama, 398
So. 2d 342, 346 (Ala. Crim. App. 1981). Next, Plaintiff’s argument that § 1147-190 imposes vicarious liability for Defendant employees’ negligent,
careless, or unskillful actions stops short of the entire analysis. Although the
Alabama Legislature abrogated municipal immunity for negligent, careless,
or unskillful actions of officers acting in the line of duty, a municipality is not
liable unless the officer is first liable. Exford v. City of Montgomery, 887 F.
Supp. 2d 1210, 1231 (M.D. Ala. 2012). In other words, the immunity granted
an officer performing any discretionary function within the line and scope of
his or her law enforcement duties under § 6-5-338(a) of the Code of Alabama
extends to his or her principal, the municipality. Ala. Code § 6-5-338(b);
Howard v. City of Atmore, 887 So. 2d 201, 2011 (Ala. 2003) (Ҥ 6-5-338 shields
the city from liability for the alleged ‘neglect, carelessness and
unskillfulness’” of its officer). This shield of immunity is removed by offering
evidence of willful, malicious, fraudulent, bad faith, actions beyond authority,
or mistaken interpretation of the law by the officer in question. Ex parte
Cranman, 792 So. 2d 392, 405 (Ala. 2000). Plaintiff offered no such evidence
in this case.
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order.
CONCLUSION
Based on the reasons set forth above, Plaintiff’s Motion to Alter or
Amend Judgment (Doc. 47) is DENIED.
DONE and ORDERED this 19th day of May, 2016.
/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE

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