Brestle v. Hastings et al

Filing 47

ORDER denying Brestle's 41 Motion for Reconsideration re 39 Order Adopting Report and Recommendations. The Court's 39 Order dated 2/3/16, remains the Order of the Court, and this case shall remain CLOSED. Signed by Chief Judge Lisa G. Wood on 7/19/2016. (ca)

N the Eniteb &two Thtrttt Court
for the boutbern Atotrttt Of Otorsta
38runistattk Athoton
GARY CHARLES BRESTLE,
Plaintiff,
V.

SUSAN R. HASTINGS, et al.,
Defendants.

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CIVIL ACTION NO.: 2:15-cv-12

ORDER

Presently before the Court is Plaintiff Gary Charles
Brestle's ("Brestle") Motion for Reconsideration of the
undersigned's Order dated February 3, 2016. Dkt. No. 39. For
the reasons set forth below, the Court DENIES Brestle's Motion.
Dkt. No. 41.
BACKGROUND

In its February 3, 2016, Order, the Court adopted the
recommendation of the Magistrate Judge, over Brestle's
Objections, and dismissed his Complaint brought pursuant to 28
U.S.C. § 1331 and Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 402 U.S. 388 (1971). The Court
rejected Plaintiff's argument that the Court should accept his
untimely filed Complaint based upon the "continuing violation

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doctrine" under Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d
1208, 1221 (11th Cir. 2001) .' Dkt. No. 39, p. 1. The Court
noted that Brestle's claims accrued several years before he
filed his action and that a reasonably prudent plaintiff would
have been alerted to assert his rights before the expiration of
the statute of limitations. Dkt. No. 39, p. 2 n.l.
In his instant Motion, Brestle first argues that the
statute of limitations applicable to his claim is governed by
federal law and, therefore, "continues to run." Dkt. No. 41, p.
3. In the alternative, Brestle argues that the statute of
limitations was tolled because he participated in an internal
investigation of his claims during the pertinent time period.
DISCUSSION

A motion for reconsideration, or a Federal Rule of Civil
Procedure 59(e) motion, is "an extraordinary remedy, to be
employed sparingly." Smith ex rel. Smith v. Augusta-Richmond
Cty., No. CV 110-126, 2012 WL 1355575, at *1 (S.D. Ga. Apr. 18,
2012) (internal citation omitted). "A movant must set forth
facts or law of a strongly convincing nature to induce the court
to reverse its prior decision." Id. (internal citation
omitted). "The only grounds for granting a Rule 59 motion are

The continuing violation doctrine holds that a plaintiff's action is
not time-barred where some of the alleged violations occurred within
the statutory period, even though other violations did not, because
the early acts were part of a continuing wrong.
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newly-discovered evidence or manifest errors of law or fact."
Jacobs v. Tempur-Pedic Intern., Inc., 626 F.3d 1327, 1344 (11th
Cir. 2010) (quoting In re Kellogg, 197 F.3d 1116, 1119 (11th
Cir. 1999) (internal punctuation omitted)). "A Rule 59(e)
motion cannot be used to relitigate old matters, raise argument
or present evidence that could have been raised prior to the
entry of judgment." Id. (quoting Michael Linet, Inc. v. Viii
of Wellington, 408 F.3d 757, 763 (11th Cir. 2005) (alterations
omitted)).
The Court discerns no reason to grant Brestle's Motion.
Here, Brestle does not present a change in controlling law 2 or
present new evidence. Rather, he improperly raises new
arguments in support of his request for reconsideration.
Brestle argues that his participation in an internal
investigation of his claims tolled the statute of limitations
applicable to his Bjvens suit. Dkt. No. 43, p. 3. However,
2

To support his argument that the statute of limitations applicable
to his claims should be tolled, Brestle cites Ross v. Blake, 136 S.
Ct. 1850 (2016). In Ross, the United States Supreme Court held that a
court may not excuse an inmate's failure to exhaust administrative
remedies prior to bringing suit under the PLRA, even to take "special"
circumstances into account. Id. at 1862. In reaching its conclusion,
the Supreme Court rejected plaintiff's argument that his participation
in an internal investigation excused his failure to exhaust
administrative remedies before filing suit. Although the Court
remanded the case to the Fourth Circuit to determine whether review by
the prison's Internal Investigations Unit eliminated plaintiff's
ability to utilize the prison's ordinary grievance procedure, the
Court did not address the issue raised by Brestle in his Motion for
Reconsidration. Brestle's arguments address whether the statute of
limitations should be tolled, whereas the Court's opinion in Ross
addressed whether that plaintiff exhausted administrative remedies.
Accordingly, Brestle has not presented a change in controlling law.
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Brestle may not "employ a motion for reconsideration as a
vehicle to present new arguments or evidence that should have
been raised earlier, introduce novel legal theories, or
repackage familiar arguments to test whether the Court will
change its mind." Brogdon v. Nat'l Healthcare Corp., 103 F.
Supp. 2d 1322, 1338 (N.D. Ga. 2000); see also O'Neal v.
Kennamer, 958 F.2d 1044, 1047 (11th Cir. 1992) (quoting Lussier
v. Dugger, 904 F.2d 661, 667 (11th dr. 1990)) (denying rule
59(e) motion and noting "[m]otions to amend should not be used
to raise arguments which could, and should, have been made
before the judgment was issued . . . Denial of a motion to amend
is 'especially soundly exercised when the party has failed to
articulate any reason for the failure to raise the issue at an
earlier stage in the litigation."). Here, nothing precluded
Brestle from raising his argument in his initial Objections to
the Magistrate Judge's Report and Recommendation, and Brestle
has not shown that he was unable to do

s0. 3

Brestle also cannot employ a Motion for Reconsideration to
argue that federal law, as opposed to Georgia law, governs the
statute of limitations applicable to his claims. The Court
already discussed at length the law supporting its holding that
In his Objections to the Magistrate Judge's Report and
Recommendation, Brestle instead reasserted his argument that the
continuing violation doctrine should excuse his untimely filing, dkt.
no. 36, and also alleged that prison officials prevented him from
pursuing an administrative remedy, dkt. no. 38.
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Brestle did not timely file this action. Dkt. No. 35,

pp. 6-9.

The Court sees no error in that analysis, much less clear error
warranting reconsideration.
CONCLUSION

For all of the above stated reasons as well as those
included in the Court's prior Orders, the Court DENIES Brestle's
Motion for Reconsideration. The Court's Order dated February 3,
2016, remains the Order of the Court, and this case shall remain
CLOSED.
SO ORDERED, this

day of ____ __________________, 2016.

LISA 9ODBEY WOE CHIEF JUDGE
UNITPD STATES DISTRICT COURT
SOU74iERN DISTRICT OF GEORGIA

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