Briggs et al v. Phebus et al

Filing 110

ORDER & REASONS: denying 76 Plaintiffs' Motion for Reconsideration. Signed by Judge Carl Barbier on 8/29/13. (Reference: all cases)(sek, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

WILLENE BRIGGS ET AL.

CIVIL ACTION

VERSUS

NO: 12-2145

WILLIAM PHEBUS ET AL.

SECTION: "J” (4)

ORDER AND REASONS
Before
Brumfield,

the
and

Court

is

Kendra

Willene

Pendleton

Briggs,

Allen

(collectively,

Briggs,

Kim

Plaintiffs)'s

Motion for Leave for Reconsideration (Rec. Doc. 76) and Deputy
William Phebus, Sheriff Daniel Edwards, and Columbia Casualty
Company

(collectively,

Defendants)'s

opposition

thereto

(Rec.

Doc. 91). Plaintiffs' motion was set for hearing on August 28,
2013, on the briefs. This matter is set for trial by jury on May
5, 2014. The Court, having considered the motions and memoranda
of

counsel,

the

record,

and

the

applicable

law,

finds

that

Plaintiffs' motion should be DENIED for the reasons set forth
more fully below.
This

action

arises

out

of

allegations

of

civil

rights

violations under 42 U.S.C. § 1983 et seq. ("§ 1983"), as well as
1

state

law

survival,

wrongful

death,

emotional

distress,

and

negligence claims resulting from an incident wherein a young man
was fatally shot by Deputy Phebus in Tangipahoa Parish. The facts
of this case are detailed in the Court's Order & Reasons dated
August 7, 2013. (Rec. Doc. 74) Therefore, rather than recount the
factual

background,

the

Court

will

proceed

directly

to

the

substance of the instant motion.
Plaintiffs

filed

a

Motion

for

Leave

for

Reconsideration

(Rec. Doc. 76) seeking reconsideration of a footnote included in
the Court's Order & Reasons regarding the Plaintiffs' motion in
limine (Rec. Doc. 74), wherein the Court stated that:
Plaintiffs incorrectly assert their state law survival,
wrongful death, and emotional distress claims through
42 U.S.C. § 1983. § 1983 is only a vehicle for relief
when a state actor violates a constitutional right or a
federal statutory right. Therefore, while Plaintiffs
were correct in bringing their excessive force and
denial of medical treatment claims under § 1983, their
survival, wrongful death, and emotional distress claims
should be brought as state law claims along with their
negligence claim which was correctly treated as a state
law claim in the complaint.
Order & Reasons, Rec. Doc. 74, p. 1.
Plaintiffs

argue

that

"federal

jurisprudence

supports

a

legal finding a [sic] survival and wrongful death actions may be
properly raised through § 1983 where the complaintant [sic] has
standing under the Louisiana state law to assert a survival

2

and/or wrongful death action." Pl.'s Mot., Rec. Doc. 76-1, p. 1.
Plaintiffs claim that they have a right of action under federal
law, and that Louisiana state law "merely addresses who had the
capacity or right to bring the action." Pl.'s Mot., Rec. Doc.
76-1, p. 2. Defendants oppose the instant motion, noting that
Plaintiffs'

claims

were

not

dismissed;

therefore,

Plaintiffs

have not suffered a manifest injustice nor have their rights
been affected in anyway, making this motion unnecessary.
Plaintiffs’ Motion for Leave for Reconsideration was filed
on August 8, 2013 which is within twenty-eight days from the
order

in

question;

therefore,

Plaintiffs’

Motion

for

Reconsideration is treated as a motion to alter or amend under
Rule 59(e). Lavespere v. Niagara Mach. & Tool Works, Inc., 910
F.2d 167, 173 (5th Cir. 1990), abrogated on other grounds by
Little v. Liquid Air Corp., 37 F.3d 1069, 1076 (5th Cir. 1994);
FED. R. CIV. P. 59(e). Altering or amending a judgment under Rule
59(e)

is

an

“extraordinary

remedy”

used

“sparingly”

by

the

courts. Templet v. Hydrochem, Inc., 367 F.3d 473, 479 (5th Cir.
2004).

A

motion

correctness

of

to
a

alter

judgment

or

amend

and

is

calls

into

permitted

question

only

in

the

narrow

situations, “primarily to correct manifest errors of law or fact
or to present newly discovered evidence.” Id.; see also Schiller

3

v. Physicians Res. Grp. Inc., 342 F.3d 563, 567 (5th Cir. 2003).
Manifest

error

is

defined

as

“‘[e]vident

to

the

senses,

especially to the sight, obvious to the understanding, evident
to the mind, not obscure or hidden, and is synonymous with open,
clear,

visible,

unmistakable,

indubitable,

indisputable,

evidence, and self-evidence.’” In Re Energy Partners, Ltd., 2009
WL 2970393, at *6 (Bankr. S.D. Tex. Sept. 15, 2009) (citations
omitted); see also Pechon v. La. Dep't of Health & Hosp., 2009
WL 2046766, at *4 (E.D. La. July 14, 2009) (manifest error is
one that “‘is plain and indisputable, and that amounts to a
complete

disregard

of

the

controlling

law’”)

(citations

omitted).
The Fifth Circuit has noted that “such a motion is not the
proper

vehicle

for

rehashing

evidence,

legal

theories,

or

arguments that could have been offered or raised before entry of
judgment.” Templet, 367 F.3d at 478-79. Nor should it be used to
“re-litigate prior matters that ... simply have been resolved to
the movant’s dissatisfaction.”

Voisin v. Tetra Technologies,

Inc., 2010 WL 3943522, at *2 (E.D. La. Oct. 6, 2010). Thus, to
prevail on a motion under Rule 59(e), the movant must clearly
establish at least one of three factors: (1) an intervening
change

in

the

controlling

law,

4

(2)

the

availability

of

new

evidence not previously available, or (3) a manifest error in
law or fact.

Schiller, 342 F.3d at 567; Ross v. Marshall, 426

F.3d 745, 763 (5th Cir. 2005) (to win a Rule 59(e) motion, the
movant “must clearly establish either a manifest error of law or
fact or must present newly discovered evidence”).
Here, the Court finds that there is nothing to reconsider
because the dicta challenged by the Plaintiffs did not "resolve"
anything. See Castellanos-Contreras v. Decatur Hotels, L.L.C.,
No. 06-4340, 207 WL 6867035*1-*2 (E.D. La. 7/19/2007)(Fallon,
J.)(noting

that

preliminary

a

footnote,

observation

which

only).

The

was

mere

Court

did

dicta,
not

was

a

dismiss

Plaintiffs' claims or determine that they did not have standing,
but rather, the Court attempted to clarify its understanding of
federal jurisprudence under § 1983. The Court simply meant to
point out that Plaintiffs appear to assert state law survival,
wrongful

death,

and

emotional

distress

claims

and

federal

wrongful death claims through § 1983, and that according to the
Court's understanding of federal jurisprudence, the state law
claims need not, and should not, be brought through § 1983.
Therefore, not only did the Court not dismiss any claims, it
actually pointed out that Plaintiffs might have more claims than
were originally pleaded in their complaint.

5

Moreover, the Court finds that there was no manifest error
of law in the footnote, but rather the Court and Plaintiffs
simply seem to state the law differently to ultimately come to
the same conclusion. Most importantly, the Plaintiffs should
note that the Court does not dispute that they may assert a
wrongful death claim under § 1983, or that the Plaintiffs may
assert various state law claims, but rather the Court merely
clarified which laws would apply later on in the proceedings.
The very passage quoted in Plaintiffs' motion states that §
1983

provides

relief

for

"the

deprivation

of

any

rights,

privileges, or immunities secured by the Constitution and laws."
Pl.'s Mot., Rec. Doc. 76-1, p. 1 citing 42 U.S.C. § 1983. It is
well-settled that this statute applies when a party has been
deprived of a federal right. See Kentucky v. Graham, 473 U.S.
159, 166-167 (1985); Goodman v. Harris, 571 F.3d 388, 395 (5th
Cir.

2009)

statutory

Therefore,

right

or

a

§

1983

federal

only

applies

constitutional

where
right

a

federal
has

been

violated. See Maine v. Thiboutot, 448 U.S. 1, 4, 10 (1980).
Then, if, and only if, such a federal right has been violated,
courts have determined that any person who may bring a wrongful
death and/or survival action under state law may bring a § 1983
action for relief from such violations of federal rights. Rhyne

6

v.

Henderson Cnty., 973 F.2d 386, 390 (5th Cir. 1992).
Thus,

as

the

Court

noted

in

the

challenged

footnote,

inasmuch as Plaintiffs assert that Defendants applied excessive
force

and

violation

failed
of

to

the

provide

Fourth

adequate

Amendment

medical
of

treatment,

the

United

in

States

Constitution, Plaintiffs are correct in bringing these claims
through § 1983. In contrast, inasmuch as Plaintiffs bring state
law claims, such as their claims for emotional distress, the
claims do not implicate a violation of a federal right, thus
they stand alone and are governed by Louisiana state law, namely
Louisiana Civil Code Articles 2315.1, 2315.2 and 2315.6. See
Kipps v. Caillier, 197 F.3d 765, 767 (5th Cir. 1999) (treating
claim under La. Civ. Code. Art. 2315.6 as a separate state law
claim

independent

from

the

plaintiff's

federal

civil

rights

claim.)
Accordingly,
IT

IS

ORDERED

that

Plaintiffs'

Motion

for

Leave

for

Reconsideration (Rec. Doc. 76) is DENIED.
New Orleans, Louisiana this 29th day of August, 2013.

CARL J. BARBIER
UNITED STATES DISTRICT COURT
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