Troutman v. DeKalb Fire E.M.S. Services et al

Filing 8

OPINION AND ORDER DENYING Plaintiff's 7 Motion for Reconsideration. Signed by Judge William S. Duffey, Jr on 1/3/2014. (anc)

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

1:13-cv-1097-WSD

DeKALB FIRE EMS SERVICES, et
al.,
Defendant.

OPINION AND ORDER
This matter is before the Court on Plaintiff Timothy Troutman’s Motion for
Reconsideration [7] of the Court’s September 30, 2013, Order [5] dismissing this
action.
I.

BACKGROUND
On April 8, 2013, Plaintiff Timothy Troutman (“Plaintiff”) filed a complaint

that appeared to assert 42 U.S.C. § 1983 claims against the DeKalb Fire EMS
Services and the DeKalb County Police Department. In it, Plaintiff alleged that on
the night of December 31, 2010, he awoke to find a “white man beating me in my
face,” and was later told that it was an EMS worker. Plaintiff fell back asleep, but
awoke again sometime later to find “four black police officers stomping me.”

Plaintiff passed out again, and later awoke in police custody, bound in a cell.
After posting bond on January 7, 2011, Plaintiff alleges that he returned
home to find his apartment had been robbed, but that the police officer who
responded to the scene refused to indicate in his report that someone had broken
into the apartment. In his complaint, Plaintiff sought compensation for his injuries
that Plaintiff claims were caused by the attacks, compensation for his stolen
property, and an apology from the law enforcement and government officials at the
DeKalb Police Department and DeKalb EMS who refused to believe his version of
events. The Court, construing the pro se complaint liberally, concluded that
Plaintiff sought to bring an action under 42 U.S.C. § 1983 against the government
officers Plaintiff claims he encountered on December 31, 2010.
On September 30, 2013, the Court dismissed this action as frivolous because
Plaintiff failed to state a viable claim. Plaintiff did not allege that the assault was
committed by an EMS worker in his capacity as an employee of the DeKalb EMS,
or that the assault was related to emergency services offered by DeKalb county as
required under Section 1983. The injuries that Plaintiff alleged resulted from the
police officers’ use of excessive force were unsupported by the medical documents
attached to Plaintiff’s complaint. Plaintiff’s allegations of the officer’s incomplete
police report is not a basis for a claim that affects a constitutional or other federal

2

right. Finally, DeKalb County Police Department is not an entity that can be sued
under Section 1983.
On November 7, 2013, Plaintiff filed a motion for reconsideration. Plaintiff
states that he wishes to “submit all of the evidence,” but does not specify what
other evidence he can provide. Plaintiff also asks the Court to reconsider its
conclusion of when Plaintiff’s injuries manifested.
II.

DISCUSSION
A.

Legal Standard

“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).” Region 8 Forest Serv. Timber
Purchasers Council v. Alcock, 993 F.2d 800, 806 n.5 (11th Cir. 1993). The Court
does not reconsider its orders as a matter of routine practice. LR 7.2 E., NDGa.
The Court’s Local Rules require the parties file any such motions for
reconsideration “within twenty-eight (28) days after entry of the order or
judgment.” Id.
The Court construes Plaintiff’s motion as a Rule 59(e) motion. Motions for
reconsideration under Rule 59(e) are only appropriate where there is newly-

3

discovered evidence1 or a need to correct a manifest error of law or fact. See Hood
v. Perdue, 300 F. App’x 699, 700 (11th Cir. 2008) (citing 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)); Arthur, 500 F.3d at 1343
(“The only grounds for granting [a Rule 59] motion are newly-discovered evidence
or manifest errors of law or fact.”); Jersawitz v. People TV, 71 F. Supp. 2d 1330,
1344 (N.D. Ga. 1999).2
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 presented in the previously-filed motion. See Arthur, 500
F.3d at 1343; 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

1

Evidence that could have been discovered and presented on the previously-filed
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.”).
2

Motions for reconsideration under Rule 60(b) only are appropriate where there is
“mistake, inadvertence, surprise, or excusable neglect,” newly discovered
evidence, fraud, a void judgment, or a judgment that has been satisfied or is no
longer applicable. Fed. R. Civ. P. 60(b).

4

Servs., 450 F. App’x 860, 863 (11th Cir. 2012) (“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.”); Pres.
Endangered Areas, 916 F. Supp. at 1560 (“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.”). Whether to grant a motion for
reconsideration is within the sound discretion of the district court. See Region 8,
993 F.2d at 806.
B.

Analysis

Plaintiff’s motion was filed 38 days after the Court issued its Order,
exceeding by ten days the time allowed by the Local Rules. LR 7.2 E., NDGa.
Plaintiff also does not assert that he has any evidence that could not have been
presented in the previously-filed complaint. Rather, Plaintiff states that he didn’t
know how to submit the evidence. Plaintiff does not, however, list or submit any
evidence other than the medical records previously attached and considered with
the original complaint.
Plaintiff also asserts that it was a mistake for the Court to conclude that the
injuries took almost two years to manifest and were not caused by the alleged
attack on December 31, 2010. These conclusions are drawn from Plaintiff’s

5

complaint and the medical records that he attached to it. See Doc. 3 at 4-5
(Following November 30, 2012, “Everything was fine I thought, I started to feel
the numbness on my right side . . . .”); Id. at 20 (Reported on February 21, 2013,
“The patient presents to emergency department complaining of a 3-week history of
intermittent right arm numbness . . . .”). The Court based its conclusion on the
nature of the symptoms in addition to the time it took them to manifest, and
Plaintiff has not shown a mistake of law or fact in the Court’s Order. There is no
basis for the Court to reconsider its prior Order, and Plaintiff’s Motion for
Reconsideration is required to be denied.
III.

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

Reconsideration [7] is DENIED.

SO ORDERED this 3rd day of January 2014.

6