Kopperud v. Mabry et al

Filing 99

OPINION AND ORDER DENYING Plaintiff's 81 Motion for Reconsideration of Dismissal of Defendant Damien Butler. Signed by Judge William S. Duffey, Jr. on 8/21/2014. (See Order for details.) (mdy)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ROBERT KOPPERUD,
Plaintiff,
v.

1:12-cv-3503-WSD

DEXTER MABRY, in his individual
capacity, and DAMIEN BUTLER, in
his individual capacity,
Defendants.

OPINION AND ORDER
This matter is before the Court on Plaintiff Robert Kopperud’s (“Plaintiff” or
“Kopperud”) “Consolidated Motion for Reconsideration Regarding the Dismissal
of Defendant Damien Butler” [81] (“Motion”).
I.

BACKGROUND
In the “Background” section of its December 18, 2013, Order, [80]

(“Summary Judgment Order”) the Court set forth this case’s extensive factual
background, and set forth the basis for granting in part Dexter Mabry’s (“Mabry”)
and Damien Butler’s (“Butler,” together with Mabry, “Defendants”) Motion for
Summary Judgment [51]. (Summary Judgment Order at 2-18, 31-48). The

background section and analysis of Plaintiff’s claims against Butler is incorporated
here by reference.
On October 8, 2012, Plaintiff filed this action under 28 U.S.C. § 1983
against Defendants in their individual capacities. Defendants are deputies in the
Fulton County, Georgia, Sheriff’s Office. On November 18, 2012, Plaintiff filed
an Amended Complaint asserting the following claims: (i) excessive use of force,
brought under Section 1983 (asserted against Butler) (Count I); (ii) false arrest,
brought under Section 1983 (asserted against Mabry and Butler) (Count II); (iii)
assault and battery, brought under state law (against Mabry and Butler) (Count III);
(iv) false imprisonment, brought under state law (against Mabry) (Count IV); (v)
failure to intervene, brought under Section 1983 (against Mabry) (Count V); (vi)
punitive damages (against Mabry and Butler) (Count VI); and (vii) attorneys’ fees,
under Section 1988 (against Mabry and Butler) (Count VII). 1 These claims were
based on events involving Plaintiff’s arrest on October 9, 2010.
On August 1, 2013, Defendants filed their Motion for Summary Judgment,
asserting qualified immunity from Plaintiff’s § 1983 claims and official immunity,
under Georgia law, from Plaintiff’s state-law claims.
1

Plaintiff also asserted, but then abandoned: a state-law false arrest claim
against Mabry and Butler; a state-law false imprisonment claim against Butler;
and, under Section 1983, a failure to intervene claim against Butler. (Pl. Resp. to
Def. Mot. for Summ. J. at 27 n.3. [72])
2

On December 18, 2013, the Court entered its Summary Judgment Order.
The Court granted Defendants’ motion in part, and denied it in part. With respect
to Butler, the Court dismissed Plaintiff’s excessive use of force, false arrest, and
assault and battery claims, and dismissed Butler from the action.2
On January 9, 2014, Plaintiff filed his Motion,3 seeking reconsideration of
the Court’s decision to dismiss the claims against Butler on the grounds that the
Court made a clear error of fact in its Summary Judgment Order.
II.

DISCUSSION
A.

Legal Standard

The Court does not reconsider its orders as a matter of routine practice, and
motions for reconsideration must be filed “within twenty-eight (28) days after the
entry of the order or judgment.” LR 7.2 E., NDGa. A motion for reconsideration
should not be used to present the Court with arguments already heard and
dismissed, or to offer new legal theories or evidence that could have been

2

The Court also dismissed the failure to intervene claim against Mabry but
denied the Motion for Summary Judgment as to the other counts against Mabry.
Mabry appealed, and the Eleventh Circuit affirmed, holding that Mabry was not
entitled to summary judgment. Kopperud v. Mabry, 14-10232, 2014 WL 3703983
(11th Cir. July 28, 2014).
3

On January 30, 2014, Butler filed his Response in Opposition [90] to the
Motion, and, on February 17, 2014, Plaintiff filed his Reply [91].

3

presented in the previously-filed motion. See Arthur v. King, 500 F.3d 1335, 1343
(11th Cir. 2007); O’Neal v. Kennamer, 958 F.2d 1044, 1047 (11th Cir. 1992);
Bryan v. Murphy, 246 F. Supp. 2d 1256, 1259 (N.D. Ga. 2003); see also Jones v.
S. Pan Servs., 450 F. App’x 860, 863 (11th Cir. 2012); Pres. Endangered Areas of
Cobb's History, Inc. v. U.S. Army Corps of Engineers, 916 F. Supp. 1557, 1560
(N.D. Ga. 1995)(“A motion for reconsideration is not an opportunity for the
moving party and their counsel to instruct the court on how the court ‘could have
done it better’ the first time.”).
A district court has the discretion to revise or reconsider interlocutory orders
at any time before final judgment has been entered.4 Fed. R. Civ. P. 54(b); e.g.,
Bryant v. Jones, 696 F. Supp. 2d 1313, 1320 (N.D. Ga. 2010). “A motion for
reconsideration generally is appropriate where there is: (1) newly discovered

4

The Summary Judgment Order dismissing the claims against Butler is not
immediately appealable and thus is not a final judgment. See Fed. R. Civ. P. 54(a)
(defining “judgment” to include “a decree and any order from which an appeal
lies.”); Cottrell v. Caldwell, 85 F.3d 1480, 1484 (11th Cir. 1996) (“We have no
interlocutory jurisdiction to review the grant of summary judgment to a defendant
on qualified immunity grounds.”) (emphasis in original). Plaintiff thus cannot seek
relief pursuant to Federal Rule of Civil Procedure 59(e) or 60(b). See Region 8
Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 806 n.5 (11th
Cir. 1993) (“A motion for reconsideration made after final judgment falls within
the ambit of either Rule 59(e) (motion to alter or amend a judgment) or Rule 60(b)
(motion for relief from judgment or order).”) (emphasis added).
4

evidence;5 (2) an intervening development or change in controlling law; or (3) a
need to correct a clear error of law or fact.”6 Id. (reconsidering the denial of
Court’s order denying defendants’ motion for summary judgment brought on
qualified immunity grounds); see also, e.g., Jersawitz v. People TV, 71 F.Supp.2d
1330, 1344 (N.D.Ga.1999). Whether to grant a motion for reconsideration is
within the sound discretion of the Court. See Region 8 Forest Serv. Timber
Purchasers Council v. Alcock, 993 F.2d 800, 806 (11th Cir. 1993).
B.

Analysis

Plaintiff’s Motion does not rely on newly discovered evidence or an
intervening development or change in controlling law. Plaintiff requests that the
Court reconsider its prior ruling based upon an alleged need to correct a clear error
of fact.

5

Evidence that could have been discovered and presented on the previouslyfiled motion is not newly discovered. See Arthur v. King, 500 F.3d 1335, 1343-44
(11th Cir. 2007); see also Mays v. U.S. Postal Serv., 122 F.3d 43, 46 (11th Cir.
1997) (“We join those circuits in holding that where a party attempts to introduce
previously unsubmitted evidence on a motion to reconsider, the court should not
grant the motion absent some showing that the evidence was not available during
the pendency of the motion.”).
6
The standard for reconsidering an interlocutory order is the same as that
used under Federal Rule of Civil Procedure 59(e). Cf. Giles v. Winn-Dixie
Montgomery, LLC, 14-11134, 2014 WL 3882951, at *3 (11th Cir. Aug. 8, 2014)
(affirming denial of Rule 59(e) motion due to plaintiff failing to identify any
newly-discovered evidence, intervening law, or manifest errors of law of fact).
5

Plaintiff asserts that the Court erroneously found that: 1) Butler was not
involved in Plaintiff’s arrest; and 2) Butler did not mock Plaintiff’s head injury by
taking unauthorized pictures of the injury. Plaintiff also claims that Butler made
false statements to hide his use of force against Plaintiff. Plaintiff asserts that the
record, as identified in his Motion, would allow a rational jury to conclude that
Butler acted maliciously when he injured Plaintiff, and thus is not entitled to
qualified immunity on his excessive force and assault claims.
Plaintiff does not meet the standard for granting a motion for
reconsideration. Plaintiff acknowledges that he was the cause of the asserted
confusion in this case that resulted in the Court overlooking evidence against
Butler. (Motion at p. 2). Plaintiff notes that he did “not lay out the record
appropriately for this Court.” (Id. at p. 17). Plaintiff states also that his Motion
“does not add any new facts to the record; it simply highlights existing facts in both
[sic] [Plaintiff’s] Response to Defendants’ Motion for Summary Judgment . . . .”
(Reply at 1 n.1) (emphasis in original). Plaintiff “acknowledge[s] that the facts
demonstrating Butler’s liability could have been presented more clearly in
[Plaintiff’s] Response to Defendants’ Motion for Summary Judgment.” (Id.).
In its Summary Judgment Order, the Court found that Butler “was not
engaged in [Plaintiff’s] arrest.” (Summary Judgment Order at p. 40). Butler, in his

6

Response in Opposition, acknowledges that he was involved in Plaintiff’s arrest,
but asserts that his involvement was isolated and minimal, and was based upon
information provided by Mabry. (Response in Opposition at p. 3).
Plaintiff asserts that Butler’s involvement in his arrest is relevant to
Plaintiff’s testimony that one of his arresting officers taunted him. (Motion at p.
4-5). Plaintiff does not assert that Butler was the specific arresting officer that
taunted him. Plaintiff does not establish that the Court’s mistaken understanding
of Butler’s involvement in Plaintiff’s arrest, which the Court agrees was minimal
and at the direction of Mabry, caused the Court to reach an incorrect conclusion in
its Summary Judgment Order. A “clear error of fact” is not clear and obviously if
the issue is “at least arguable.” Cf. Reid v. BMW of N. Am., 464 F. Supp. 2d
1267, 1270 (N.D. Ga. 2006).
In both his Response [72] to the Motion for Summary Judgment or his
Sur-Reply [75],7 Plaintiff failed to assert that Butler was involved in his arrest, or
raise this issue in support of any of his claims against Butler. The Court is not
required to “sift through the facts presented and decide for [itself] which [are]
material to the particular cause of action asserted.” Cf. Hazelton v. Dekalb Cnty.,
7

Plaintiff filed a document named “Plaintiff’s Response to Defendants’
Objection to Evidence Cited and Filed by Plaintiff.” This pleading addresses
arguments raised in Defendants’ Reply.
7

Ga., 09-cv-00026, 2009 WL 2848226, at * 1 (N.D. Ga. Aug. 31, 2009) (quoting
Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293,
1296 n. 9 (11th Cir.2002)). Plaintiff is seeking to turn a factual misunderstanding
that he had ample opportunity to address prior to the Summary Judgment Order
into grounds for him to reargue issues previously litigated and resolved by this
Court. Plaintiff is not entitled to instruct the Court on how it “could have done it
better.” Butler’s involvement in Plaintiff’s arrest does not warrant reconsideration
of the Court’s Summary Judgment Order. See, e.g., Arthur v. King, 500 F.3d
1335, 1343 (11th Cir. 2007); Pres. Endangered Areas of Cobb’s History, Inc. v.
U.S. Army Corps of Engineers, 916 F. Supp. 1557, 1560 (N.D. Ga. 1995).
The remaining issues raised by Plaintiff do not involve mistakes of fact, and,
thus, do not even purport to satisfy the standard for reconsideration of the Court’s
Summary Judgment Order. Plaintiff reiterates his claim that Butler slammed
Plaintiff’s head against the window while he was handcuffed and inside the intake
area, and argues that Butler made a false statement to hide his use of force against
Plaintiff. (Motion at pp. 5-7, 9-10). Plaintiff does not provide any new evidence,
authority, or establish an error of fact to warrant reconsideration of the Court’s
prior ruling that the force Butler used was appropriate under the circumstances and

8

was not committed maliciously for the purpose of causing harm to Plaintiff.
(Summary Judgment Order at pp. 31-44).
Plaintiff also suggests that the Court made an inconsistent finding regarding
whether Butler took photographs of Plaintiff’s injuries. (Motion at p. 7-8). In its
Summary Judgment Order, the Court noted:
Kopperud stated Butler and some other officer laughed “at him” when the
photographs were taken and states the pictures were taken on iPhones.
There are no photographs in the record, but the Court, viewing the evidence
in the light most favorable to the Plaintiff, assumes photographs were taken.
(Summary Judgment Order at p. 40 n.37) (emphasis added). The Court then noted:
[t]here is no evidence the photographs were not authorized or taken for a
reason other than to document Kopperud’s appearance at the time.
(Id. at p. 42 n.38).
Plaintiff notes that Butler previously testified that no pictures of Plaintiff
were taken in his presence. (Motion at p. 8). Plaintiff asserts that the Court’s
finding that photographs were taken, combined with Butler’s testimony that no
photographs were taken, demonstrates that Butler did not take any of the alleged
photographs for any authorized reason. (Motion at p. 8). One, however, does not
follow the other. The Court, as is proper when deciding whether to grant summary
judgment, viewed the evidence in Plaintiff’s favor and found, for purposes of
summary judgment, that photographs had been taken. The Court, however, did not

9

make a factual finding that photographs were actually taken, and Butler’s
testimony that no photographs were taken is not inconsistent with the record.
Butler’s testimony is also not inconsistent with the Court’s conclusion that, to the
extent photographs were taken, there is no evidence that they were taken for any
unauthorized reason. Plaintiff is seeking to create an issue of fact where none
exists in order to relitigate issues already decided by this Court, and is not entitled
to reconsideration of his claims. See Arthur, 500 F.3d at 1343; O’Neal v.
Kennamer, 958 F.2d at 1047; see also Jones v. S. Pan Servs., 450 F. App’x at 863
(“A motion to alter or amend a judgment cannot be used to relitigate old matters,
raise arguments, or present evidence that could have been raised prior to the entry
of judgment.”).
III.

CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Reconsideration

[81] is DENIED.

SO ORDERED this 21st day of August, 2014.

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