Johnson v. Conway et al

Filing 51

ORDER denying Plaintiff's 41 Motion for Reconsideration, or in the Alternative, 41 Motion to Amend the Second Amended Complaint. Signed by Judge Richard W. Story on 5/2/2014. (cem)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
VANCE R. JOHNSON,
Plaintiff,
v.
SHERIFF R.L. “BUTCH
CONWAY, et al.,
Defendants.

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CIVIL ACTION NO.
1:13-CV-0524-RWS

ORDER
This case is before the Court on Plaintiff’s Motion for Reconsideration,
or, in the Alternative, Motion to Amend [41]. After reviewing the record and
the Parties’ submissions, the Court enters the following Order.
Under the Local Rules of this Court, “[m]otions for reconsideration shall
not be filed as a matter of routine practice[,]” but rather, only when “absolutely
necessary.” N.D. Ga. L.R. 7.2(E). Such absolute necessity arises where there is
“(1) newly discovered evidence; (2) an intervening development or change in
controlling law; or (3) a need to correct a clear error of law or fact.” Bryan v.
Murphy, 246 F. Supp. 2d 1256, 1258-59 (N.D. Ga. 2003). A motion for
reconsideration may not be used “to present the court with arguments already

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heard and dismissed or to repackage familiar arguments to test whether the
court will change its mind.” Id. at 1259. Nor may it be used “to offer new legal
theories or evidence that could have been presented in conjunction with the
previously filed motion or response, unless a reason is given for failing to raise
the issue at an earlier stage in the litigation.” Adler v. Wallace Computer
Servs., Inc., 202 F.R.D. 666, 675 (N.D. Ga. 2001). Finally, “[a] motion for
reconsideration is not an opportunity for the moving party . . . to instruct the
court on how the court ‘could have done it better’ the first time.” Pres.
Endangered Areas of Cobb’s History, Inc. v. U.S. Army Corps of Eng’rs, 916
F. Supp. 1557, 1560 (N.D. Ga. 1995), aff’d, 87 F.3d 1242 (11th Cir. 1996).
Plaintiff seeks reconsideration of portions of the Court’s Order dated
September 30, 2013 [39]. Specifically, Plaintiff moves for reconsideration of:
“(1) the dismissal of Plaintiff’s claim that Defendant Fajardo (and, by virtue of
respondeat superior, her employer Defendant Corizon) is liable for the use of
excessive force against Plaintiff for purposes of the Fourteenth Amendment and
state law battery claims; and (2) the dismissal of the use of force claim against
Fajardo and Corizon as part of Plaintiff’s First Amendment retaliation claim,
which the Court has permitted to proceed only on the theory that the
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involuntarily administered TB test was retaliatory.” (Pl.’s Br., [41] at 1-2 of
11.) In large part, Plaintiff’s motion rehashes arguments already presented to
the Court. However, Plaintiff identifies “two additional facts that have come to
light since the briefing of the motion to dismiss that also lend plausibility to the
allegation that Fajardo asked the detention staff to use force against Johnson.”
(Id. at 2 of 11.)
First, Plaintiff points to a Gwinnett County jail policy that was produced
by Defendants on June 7, 2013. (Informed Consent and Right to Refuse
Treatment Policy/Procedure, [41-1].) The policy reads, in pertinent part:
In certain cases, refusal of treatment for some
procedures will have repercussions. This includes:
(a) In the event that a patient refuses a PPD,
s/he is to be housed in an isolated cell,
preferably negative pressure until s/he consents
to a chest x-ray or medical documentation is
obtained establishing that the patient is not
symptomatic of tuberculosis.
(Id. at 4 of 5.) According to Plaintiff, the policy means that “in the event an
inmate refuses a medical procedure, ‘negative pressure’ is to be applied until
the inmate/patient consents to the procedure.” (Pl.’s Br., [41] at 3 of 11.) Thus,
he argues, “it is certainly plausible that Nurse Fajardo knew that a request for
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Revels’ assistance would lead him and the Rapid Response Team to bring
‘negative pressure’ in the form of ‘gratuitous, punitive and excessive’ force
against an inmate who refused to comply with her instructions.” (Id. at 4 of 11.)
Medical Defendants counter, however, that “negative pressure” refers to
a type of holding cell – negative air pressure cells, which are used to control the
spread of TB by preventing its airborne spread. (Def.s’ Resp., [49] at 7 of 11.)
See CDC, “Current Trends Prevention and Control of Tuberculosis in
Correctional Institutions: Recommendations of the Advisory Committee for the
Elimination of Tuberculosis” (May 12, 1989), available at
http://www.cdc.gov/mmwr/preview/mmwrhtml/00001388.htm (“Persons with
suspected or confirmed TB . . . should be immediately placed in respiratory
isolation (e.g., housed in an area with separate ventilation to the outside,
negative air pressure in relation to adjacent areas, and at least four to six room
air exchanges per hour) [].”).
In light of Defendants’ explanation for the policy language, the Court
finds Plaintiff’s interpretation of the policy unpersuasive. The excerpted policy
language is limited to an inmate’s refusal to take a TB test, it does not mention
the use of force, and it does not ultimately favor inmates consenting to the TB
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test (i.e., it contemplates obtaining confirmation of an inmate’s TB status
through other means). Furthermore, the policy does not bolster Plaintiff’s
allegation that Defendant Fajardo, who is not a detention staffer or Rapid
Response Team member, conspired with detention staff to use excessive force
or commit a battery against Plaintiff.
Second, Plaintiff cites a class action filed in the Northern District of
Georgia on July 6, 2013, which alleges a “pattern and practice of unnecessary
and excessive force inflicted upon hundreds of inmates of the Gwinnett County
Jail by a Rapid Response Team that is mobilized on a daily basis to subject
detainees to gratuitous, punitive, and sadistic pain in retaliation for loud,
intoxicated, or alleged noncompliant behavior . . . .” (Pl.’s Br., [41].) Again,
the Court is uncertain how this development demonstrates that Defendant
Fajardo knew, at the time the events in question occurred, that the jail’s Rapid
Response Team would use excessive force against Plaintiff for refusing to sign
a medical consent form. This “new evidence” does not change the Court’s
analysis regarding an alleged conspiracy between Defendant Fajardo and
detention staff to use excessive force against Plaintiff.

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Thus, the new developments identified by Plaintiff do not alter the
Court’s analysis in its previous Order. (See Order, [39] at 12-19 of 22.)
Plaintiff has not identified an intervening development or change in controlling
law or a need to correct a clear error of law or fact. Therefore, Plaintiff’s
motion for reconsideration is DENIED.
Alternatively, Plaintiff moves the Court for leave to amend the Second
Amended Complaint to add allegations regarding Fajardo’s involvement in
detention staffs’ use of force against Plaintiff. (See Pl.’s Br., [41] at 7-8 of 11.)
Plaintiff cites Davila v. Delta Air Lines, Inc., 326 F.3d 1183 (11th Cir. 2003), in
support of his motion, claiming: “The general rule is that a plaintiff will be
permitted to amend a dismissed complaint where the dismissal is based upon
technical defects.” (Pl.’s Br., [41] at 8 of 11.) However, in Davila, the circuit
court concluded that the district court had not dismissed a case based on
technical defects, but rather, had addressed the merits of the plaintiff’s claims
under a Rule12(b)(6) analysis. Here, the Court addressed the merits of
Plaintiff’s claims and found his allegations insufficient to state a claim against
Fajardo for conspiracy to use excessive force or commit a battery (except to the
extent the battery claim is based on her alleged improper administration of
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Plaintiff’s TB test). The defects in Plaintiff’s Second Amended Complaint are
not technical; they are substantive.
The Medical Defendants oppose amendment on grounds that Plaintiff’s
two prior amendments failed to cure deficiencies in Plaintiff’s claims.
“Generally, a party should be given at least one opportunity to amend before the
district court dismisses the complaint with prejudice. However, amendment
need not be allowed ‘(1) where there has been undue delay, bad faith, dilatory
motive, or repeated failure to cure deficiencies by amendments previously
allowed; (2) where allowing amendment would cause undue prejudice to the
opposing party; or (3) where amendment would be futile.’” Butler v. Prison
Health Servs., Inc., 294 Fed. App’x 497, 500 (11th Cir. 2008) (citations
omitted). Here, the Court allowed Plaintiff to amend his Complaint twice.
Leave to file the Second Amended Complaint was granted after Defendants
moved to dismiss Plaintiff’s claims. A third bite of the apple is not warranted.
Some of Plaintiff’s new allegations arise from the policy and class action
discussed above, which are irrelevant to the Court’s analysis. The other
allegations are based on “information and belief,” not new facts known to
Plaintiff. In his Second Amended Complaint, Plaintiff alleged that he saw
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Fajardo and Defendant Revels speak prior to the officers’ use of force against
Plaintiff, but he could not hear what was said between them. (Second Amended
Complaint, [34-1] ¶ 34.) Thus, the new allegations regarding what was said
during that communication and the intent behind that communication are pure
conjecture. Further, there is no apparent reason why Plaintiff could not have
included these allegations in his Second Amended Complaint. Consequently,
Plaintiff’s alternative motion to amend the Second Amended Complaint is
DENIED.
Conclusion
Based on the foregoing, Plaintiff’s Motion for Reconsideration, or, in the
Alternative, Motion to Amend [41] is DENIED.
SO ORDERED, this 2nd day of May, 2014.

_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE

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