Stewart v. City of Franklin et al

Filing 40

MEMORANDUM OPINION AND ORDER by Chief Judge Joseph H. McKinley, Jr. on 4/24/2014 re 34 Motion to Set Aside or Amend Judgment. For the reasons set forth, IT IS HEREBY ORDERED that Plaintiff Michael Stewart's Rule 59(e) Motion to Set Aside or Amend Judgment (DN 34 ) is GRANTED. The judgment entered on December 2, 2013 (DN 33 ) is VACATED consistent with this opinion. cc: Counsel (CDR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:13CV-70-JHM
MICHAEL V. STEWART

PLAINTIFF

VS.
CITY OF FRANKLIN,
FRANKLIN POLICE DEPARTMENT,
BARREN RIVER AREA DEVELOPMENT DISTRICT,
KEVIN ALLEN, individually and
in his official capacity,
KENTON POWELL, individually and
in his official capacity

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff Michael Stewart’s Rule 59(e) Motion to Set
Aside or Amend Judgment [DN 34]. Fully briefed, this matter is ripe for decision.
I. BACKGROUND
On December 2, 2014, the Court granted summary judgment in favor of
Defendants City of Franklin (“City”), Franklin Police Department, Barren River Area
Development District (“BRADD”), Kevin Allen (individual and official capacity), and Kenton
Powell (individual and official capacity) on all of Plaintiff’s claims, including alleged violations
of his Fourth, Fifth, and Fourteenth Amendment rights. In the opinion, the Court held that the
Plaintiff’s Fifth and related Fourteenth Amendment claims were not ripe for adjudication under
the rule announced in Williamson County Regional Planning Com'n v. Hamilton Bank of
Johnson City, 473 U.S. 172 (1985). The Court also dismissed Plaintiff’s Fourth and Fourteenth
Amendment claims since these claims were simply restated Fifth Amendment claims and to
allow them to proceed would eviscerate the ripeness requirement for takings claims under the

Fifth Amendment. The 42 U.S.C. § 1985 claim was dismissed because it was ancillary to the
Fifth Amendment claim and there were no allegations to suggest that Plaintiff is a member of a
protected class. As all the federal claims were dismissed, the Court declined to exercise
jurisdiction over the state law claims.
The Plaintiff now asks the Court to reconsider the dismissal as to his Fourth and
Fourteenth Amendment claims under 42 U.S.C. § 1983. In addition, the motion asks the Court
to exercise supplemental jurisdiction over all the state claims. The current motion does not ask
that any other part of the opinion be reconsidered.
II. STANDARD OF REVIEW
Motions to alter or amend judgments may be “made for one of three reasons: (1) An
intervening change of controlling law; (2) Evidence not previously available has become
available; or (3) It is necessary to correct a clear error of law or prevent manifest injustice.”
United States v. Jarnigan, 2008 WL 5248172, at *2 (E.D. Tenn. Dec. 17, 2008) (citing Fed. R.
Civ. P. 59(e); Helton v. ACS Grp., 964 F. Supp. 1175, 1182 (E.D. Tenn. 1997)); see also
GenCorp, Inc. v. Am. Int'l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999). Rule 59(e) is not
intended to be used to “‘relitigate issues previously considered’ or to ‘submit evidence which in
the exercise of reasonable diligence, could have been submitted before.’” United States v.
Abernathy, 2009 WL 55011, at * 1 (E.D. Mich. Jan. 7, 2009) (citation omitted); see also
Browning v. Pennerton, 2008 WL 4791491, at * 1 (E.D. Ky. Oct. 24, 2008) (“[A] motion for
reconsideration is not a vehicle to re-hash old arguments . . . .”); Elec. Ins. Co. v. Freudenberg–
Nok, Gen. P'ship, 487 F. Supp. 2d 894, 902 (W.D. Ky. 2007) (“Such motions are not an
opportunity for the losing party to offer additional arguments in support of its position.”).

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Motions to alter or amend judgments under Rule 59(e) “are extraordinary and sparingly granted.”
Marshall v. Johnson, 2007 WL 1175046, at *2 (W.D. Ky. Apr. 19, 2007).
III. ANALYSIS
Consideration of Plaintiff’s Rule 59(e) motion convinces the Court that it committed
clear error when it dismissed his Fourth and related Fourteenth Amendment claims. The case
law relied upon by the Court does not support the dismissal. To the contrary, Soldal v. Cook
County, Ill., 506 U.S. 56, 71, 113 S. Ct. 538, 549, 121 L. Ed. 2d 450 (1992) supports Plaintiff’s
argument that his Fourth and Fourteenth Amendment are viable regardless of the ripeness of his
Fifth Amendment claims. See also Presley v. City Of Charlottesville, 464 F.3d 480, 485-86 (4th
Cir. 2006). The Court finds that Plaintiff has alleged sufficient facts to support a claim under the
Fourth and Fourteenth Amendments for an unreasonable seizure of his home.
Therefore, Plaintiff’s motion to amend the judgment is granted. The Fourth and related
Fourteenth Amendment claims are reinstated. Since there is now a federal claim, the Court will
reinstate the state law claims and exercise supplemental jurisdiction over them.
It seems that the Fourth and related Fourteenth Amendment claims under 42 U.S.C. §
1983 against Defendant Kevin Allen and Defendant Kenton Powell, in their official capacity, are
redundant due to the same claims against the City. See, e.g., Butts v. Deibler, 2013 WL 3423770,
*3 (W.D. Ky. July 8, 2013) (citing Leach v. Shelby County Sheriff, 891 F.2d 1241, 1245 (6th
Cir. 1989)). Similarly, a § 1983 suit may not be pursued against the Franklin Police Department.
Rhodes v. McDannel, 945 F.2d 117, 120 (6th Cir. 1991) (“[T]he Sheriff's Department is not a
legal entity subject to suit.”) (citing Kurz v. Michigan, 548 F.2d 172, 174 (6th Cir. 1977)). Thus,
the only remaining parties are Powell (in his individual capacity), Allen (in his individual
capacity), BRADD and the City.

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Despite the fact that Plaintiff does not seek reconsideration of the dismissal of his Fifth
Amendment claims, the Court is again convinced, upon review, that it erred in dismissing those
claims entirely. Consistent with the holding of Montgomery v. Carter County, Tennessee, 226
F.3d 758 (6th Cir. 2000), and to the extent Plaintiff is alleging that his property was taken for a
private use, he may pursue his Fifth Amendment related claims. The Court, in its earlier opinion,
rejected Montgomery because “the facts alleged by Plaintiff demonstrate that his property was
demolished in connection with obtaining a local development grant.” [DN 32, p. 4]. However,
while that may be true for the real estate, the same cannot be said definitively about the personal
property contained inside the home, which was allegedly all destroyed. Plaintiff should have an
opportunity to prove that the taking and destruction of his personal property “had no rational
connection to a minimally plausible conception of the public interest.” Id. at 768. Therefore,
Plaintiff’s Fifth Amendment claims are reinstated to the extent he claims the taking of his
personal property was not for a public use.
IV. CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that Plaintiff Michael
Stewart’s Rule 59(e) Motion to Set Aside or Amend Judgment [DN 34] is GRANTED. The
judgment entered on December 2, 2013 [DN 33] is VACATED consistent with this opinion.

April 24, 2014

cc: counsel of record

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