Brown v. Warren et al

Filing 26

OPINION AND ORDER denying 16 Plaintiff's Motion for Reconsideration. Signed by Judge William S. Duffey, Jr on 2/23/17. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ROY L. BROWN, a/k/a ROY
HICKS,
Plaintiff,
v.

1:16-cv-1057-WSD-JCF

SHERIFF NEIL WARREN, COL.
GREER, MAJOR HAMMONS,
MAJOR WILLIAMS,
LT. TANKERSLEY, SGT. HOLT,
SHERIFF’S OFFICE STAFF
(Classification Committee),
Defendants.

OPINION AND ORDER
This matter is before the Court on Plaintiff Roy L. Brown’s (“Plaintiff”)
Motion to Reconsider [16].
I.

BACKGROUND
On February 25, 2016, Plaintiff, proceeding pro se, filed his Civil Rights

Complaint Pursuant to 42 U.S.C. § 1983 [1] (“Complaint”), naming as defendants
Sheriff Neil Warren, Colonel Greer, Major Hammons, Major Williams, Lieutenant
Tankersley, Sergeant Holt, and unnamed members of the Classification Committee
at Cobb County Adult Detention Center (“Detention Center”), where Plaintiff is

confined. All of the named defendants, other than Sheriff Neil Warren, work at the
Detention Center.
Plaintiff alleges that, on September 10, 2015, he was released from the
Detention Center’s medical unit and “was placed in 5 North 1 dorm which is a
lockdown area for people with disciplinary sanctions and awaiting disciplinary
hearings and sanctions for their acts committed, and P.C. which is Protective
Custody.” ([1] at 3-4). Plaintiff alleges that he should not have been placed in
lockdown because he does not have disciplinary infractions or charges. After
Plaintiff sent a written complaint to Colonel Prince, the commanding officer of the
Detention Center, Colonel Prince “issued ‘orders’” that Plaintiff should not be
“locked down with [his] privileges being restricted and taken.” ([1] at 4). Plaintiff
claims that Defendants Major Hammons, Major Williams, Lieutenant Tankersley,
and Sergeant Holt failed to follow the commanding officer’s instruction, and that,
since September 10, 2015, he has been confined in lockdown for twenty-three (23)
hours per day. ([1] at 4, 6). Plaintiff seeks $25 million in compensation for
“1) deliberate indifference, 2) cruel and unusual punishment, 3) pain and suffering,
4) mental anguish and stress, 5) punitive damages, 6) declamation [sic] of
character [and] . . . 8) discrimination.” ([1] at 4-5).
On June 6, 2016, Magistrate Judge J. Clay Fuller screened Plaintiff’s
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Complaint and issued his Non-Final Report and Recommendation [6] (“R&R”).1
The R&R recommended that Plaintiff’s claims against Major Hammons, Major
Williams, Lieutenant Tankersley, and Sergeant Holt be allowed to proceed, and
that Plaintiff’s remaining claims be dismissed. On June 16, 2016, Plaintiff filed his
Objections [8] to the R&R, asserting that his claims against Sheriff Neil Warren,
Colonel Greer and the Classification Committee (together, “Dismissed
Defendants”) “should not be dismissed because they are all equally respons[i]ble
for their actions as decision makers.” ([8] at 2). On June 28, 2016, Plaintiff filed
his Amended Objections [9], asserting the same objection in identical language.
On October 4, 2016, the Court adopted the R&R and overruled Plaintiffs’
objections. ([10] (“October 2016 Order”)).
On November 3, 2016, Plaintiff executed his Motion to Reconsider, seeking
reconsideration of “the decision made by the Honorable U.S. Magistrate Judge
Mr. J. Clay Fuller . . . concerning the dismissal of Sheriff Neil Warren, Col. Greer,
1

A federal court must screen “a complaint in a civil action in which a prisoner
seeks redress from a governmental entity or officer or employee of a governmental
entity.” 28 U.S.C. § 1915A(a). The Court is required to dismiss the complaint if it
is “frivolous, malicious, or fails to state a claim upon which relief may be granted,”
or if it “seeks monetary relief from a defendant who is immune from such relief.”
28 U.S.C. § 1915A(b). A claim is frivolous, and must be dismissed, where it
“lacks an arguable basis either in law or in fact.” Miller v. Donald, 541 F.3d 1091,
1100 (11th Cir. 2008).
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and the Sheriff’s Office Staff (Classification Committee).” ([16] at 1).2 Plaintiff
claims that, although the Dismissed Defendants “did not commit the [alleged] due
process violations, they became responsible for them when they failed to correct
them in the course of their supervisory responsibilities, and rejecting plaintiff’s
grievance on appeal.” ([16] at 4). Plaintiff claims “it cannot be argued that [the
Dismissed Defendants] did not learn of the due process violation in this case,”
including because Plaintiff “identified the due process violations in his grievance
and letters.” ([16] at 5).
II.

DISCUSSION
Motions for reconsideration “should be reserved for extraordinary

circumstances” and are not to “be filed as a matter of routine practice.” LR 7.2(E),
NDGa; Adler v. Wallace Computer Servs., Inc., 202 F.R.D. 666, 675 (N.D. Ga.
2001). If a motion for reconsideration is “absolutely necessary,” it must be “filed
with the clerk of court within twenty-eight (28) days after entry of the order or
judgment.” LR 7.2(E), NDGa. Plaintiff’s Motion to Reconsider was executed on
November 3, 2016, five months after entry of the R&R he purports to challenge,
and thirty-one (31) days after entry of the Court’s October 2016 Order adopting the

2

Plaintiff’s Motion to Reconsider was received by the Clerk of Court on
December 15, 2016, and entered on December 19, 2016.
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R&R. Plaintiff does not explain this delay. The Motion to Reconsider is denied
because it was not timely filed.
Plaintiff’s Motion to Reconsider also fails because it purports to challenge
the Magistrate Judge’s R&R, which is not subject to reconsideration. Even if
Plaintiff sought reconsideration of the Court’s October 2016 Order, he fails to
assert facts or arguments justifying relief. Under Rule 60(b) of the Federal Rules
of Civil Procedure, the Court may grant a motion for reconsideration under the
following circumstances: (1) “mistake, inadvertence, surprise, or excusable
neglect,” (2) newly discovered relevant evidence, (3) misconduct by an opposing
party, (4) the judgment is void, (5) the judgment has been satisfied, released or
discharged, (6) the judgment is based on an earlier judgment that has been reversed
or vacated, (7) applying the judgment prospectively is no longer equitable, or
(8) “any other reason that justifies relief,” such as “an intervening development or
change in controlling law” or a “need to correct a clear error.”
Fed. R. Civ. P. 60(b); Jersawitz v. People TV, 71 F. Supp. 2d 1330, 1344
(N.D. Ga. 1999).
Plaintiff’s Motion to Reconsider does not establish circumstances satisfying
any of these requirements. Plaintiff’s Complaint does not alleged specific facts
tying the Dismissed Defendants to the actions about which Plaintiff complains.
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Indeed, the factual narrative in the Complaint does not refer to the Dismissed
Defendants at all. Cf. Anderson v. Chapman, 604 F. App’x 810, 813 (11th Cir.
2015) (“[F]or any of the defendants to be held liable in damages, [plaintiff] would
have to prove that the defendant personally participated in the denial [of due
process].”); Douglas v. Yates, 535 F.3d 1316, 1322 (11th Cir. 2008)
(“[A] complaint will be held defective . . . if [it] fails to connect the defendant with
the alleged wrong.”); see also Brannon v. Thomas Cty. Jail, 280 F. App’x 930, 933
(11th Cir. 2008).
To the extent Plaintiff claims that the Dismissed Defendants knew about the
alleged due process violations, and took no action to address them and he failed to
clearly include these allegations in his Complaint or raise this argument in his
objections to the R&R. Cf. Bryan v. Murphy, 246 F. Supp. 2d 1256, 1259
(N.D. Ga. 2003) (“[A] reconsideration motion may not 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.” (citation and internal quotation marks

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omitted)).3 Plaintiff has failed to establish “extraordinary circumstances”
justifying relief, and his Motion to Reconsider is denied. Adler, 202 F.R.D. at 675.
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Reconsider [16] is

DENIED.

SO ORDERED this 23rd day of February, 2017.

3

Even Plaintiff’s Motion to Reconsider does not include specific allegations
showing the Dismissed Defendants knew about, but ignored, Plaintiff’s alleged
constitutional violations. The Motion to Reconsider states “it cannot be argued
that [the Dismissed Defendants] did not learn of the due process violation in this
case,” including because Plaintiff “identified the due process violations in his
grievance and letters.” ([16] at 5). Plaintiff does not assert that “his grievance and
letters” were sent to, or read by, any of the Dismissed Defendants.
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