Panowicz v. Hancock et al
Filing
95
MEMORANDUM AND ORDER DENYING 90 Motion for Reconsideration and DENYING 91 Motion to Reopen Sovereign Immunity Issue (c/m to Plaintiff 10/5/15 sat). Signed by Judge Deborah K. Chasanow on 10/5/2015. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
MARK A. PANOWICZ
:
v.
:
Civil Action No. DKC 11-2417
:
SHARON L. HANCOCK
:
MEMORANDUM OPINION AND ORDER
Presently pending and ready for review are Plaintiff Mark
Panowicz’s motion for reconsideration (ECF No. 90) and motion to
reopen the sovereign immunity issue (ECF No. 91).
The issues
have been fully briefed, and the court now rules, no hearing
being deemed necessary.
Local Rule 105.6.
For the following
reasons, Plaintiff’s motions will be denied.
I.
Background
The background to this case may be found in the memorandum
opinion issued on July 9, 2015.
(See ECF No. 88, at 2-16).
That opinion and an accompanying order granted Defendant Sharon
Hancock’s
(“Defendant”)
motion
for
summary
judgment,
denied
Plaintiff Mark Panowicz’s (“Plaintiff”) cross-motion for summary
judgment, and entered judgment in favor of Defendant and against
Plaintiff on all of Plaintiff’s remaining claims.
On July 27,
2015, Plaintiff filed a motion for reconsideration (ECF No. 90),
a motion to reopen the sovereign immunity issue (ECF No. 91),
and
a
memorandum
in
support
of
his
motions
(ECF
No.
92-3).
Defendant responded in opposition (ECF No. 93), and Plaintiff
replied (ECF No. 94).
II.
Standard of Review
A motion for reconsideration filed within 28 days of the
underlying order is governed by Fed.R.Civ.P. 59(e).1
Courts have
recognized
motion
three
limited
grounds
for
granting
a
for
reconsideration pursuant to Rule 59(e): (1) to accommodate an
intervening change in controlling law; (2) to account for new
evidence not available at trial; or (3) to correct clear error
of law or prevent manifest injustice.
See United States ex rel.
Becker v. Westinghouse Savannah River Co., 305 F.3d 284, 290 (4th
Cir. 2002) (citing Pac. Ins. Co. v. Am. Nat’l Fire Ins. Co., 148
F.3d 396, 403 (4th Cir. 1998)).
A motion for reconsideration is
properly denied when a movant fails to establish one of these
three criteria.
See, e.g., Jarvis v. Enter. Fleet Servs. &
Leasing Co., No. DKC-07-3385, 2010 WL 1929845, at *2 (D.Md. May
1
A party may move to alter or amend a judgment under Rule
59(e), or for relief from a judgment or order under Rule 60(b).
See Fed.R.Civ.P. 59(e) & 60(b).
A motion to alter or amend
filed within 28 days of the judgment is analyzed under Rule
59(e); if the motion is filed later, however, Rule 60(b)
controls. See MLC Auto, LLC v. Town of S. Pines, 532 F.3d 269,
280 (4th Cir. 2008); Classen Immunotherapies, Inc. v. King
Pharmaceuticals, Inc., No. WDQ–04–3621, 2013 WL 5934055, at *3
(D.Md. Oct. 31, 2013).
Here, because Plaintiff moved for
reconsideration within 28 days of the July 9, 2015 memorandum
opinion and order, Rule 59(e) governs the pending motion for
reconsideration.
2
11, 2010), aff’d, 408 F.App’x 668 (4th Cir. 2011) (denying motion
to reconsider because the plaintiff failed to identify valid
circumstances that would cause the district court to alter or
amend its prior opinion).
A Rule 59(e) motion “may not be used to relitigate old
matters, or to raise arguments or present evidence that could
have been raised prior to the entry of judgment.”
Co.,
148
F.3d
at
403
(quoting
11
Wright,
et
Pac. Ins.
al.,
Federal
Practice & Procedure § 2810.1, at 127–28 (2d ed. 1995)); see
also Medlock v. Rumsfeld, 336 F.Supp.2d 452, 470 (D.Md. 2002),
aff’d, 86 F.App’x 665 (4th Cir. 2004) (citation omitted) (“To the
extent that Plaintiff is simply trying to reargue the case, he
is not permitted to do so.
Where a motion does not raise new
arguments, but merely urges the court to ‘change its mind,’
relief is not authorized.”).
“In general, ‘reconsideration of a
judgment after its entry is an extraordinary remedy which should
be used sparingly.’”
Pac. Ins. Co., 148 F.3d at 403 (quoting
Wright, et al., supra, § 2810.1, at 124).
III. Analysis
Plaintiff’s motion for reconsideration does not satisfy any
of
the
three
Plaintiff
newly
has
grounds
not
developed
for
reconsideration
identified
evidence,
any
clear
under
intervening
error
of
Rule
change
law,
or
59(e).
in
manifest
injustice to warrant an alteration of the prior judgment.
3
law,
He
makes
several
arguments
to
support
his
motion
for
reconsideration, but none are persuasive.
First,
Plaintiff
argues
that
“the
Court
may
not
have
understood Plaintiff was asserting [as] a basis for liability
against
Defendant[]
.
.
.
reckless
disregard
of
Plaintiff’s
federal rights, and acts that were grossly negligent . . . that
[] could be proven by inference from the facts presented.”
No.
92-3,
memorandum
at
2).
opinion
Contrary
indeed
to
did
Plaintiff’s
address
(ECF
assertion,
Plaintiff’s
the
burden
of
proof and the possibility of demonstrating fault by inference.
(See ECF No. 88, at 26, 27 n.4).
Plaintiff attempts to rehash
the same arguments and facts that he presented in his crossmotion for summary judgment, and he contends that they provide
an inference that Defendant acted with reckless disregard and
gross
negligence.
relitigate
old
A
Rule
matters,
attempts to do here.
59(e)
which
motion
is
may
precisely
not
be
what
used
to
Plaintiff
The memorandum opinion issued on July 9,
2015 explained that the facts presented by Plaintiff did not
support
his
assertion
that
Defendant
had
acted
with
gross
negligence or reckless disregard in carrying out her duties as
Clerk of the Circuit Court for Charles County.
Plaintiff
was
found
to
have
“presented
no
(Id. at 23-29).
evidence
that
Defendant Hancock or Clerk [Richard] Day were aware or should
have been aware that Clerk’s Office employees were engaged in
4
conduct
that
posed
a
pervasive
and
unreasonable
constitutional injury to citizens like Plaintiff.”
risk
of
(Id. at 38).
Furthermore, Defendant was found to be statutorily immune from
liability for the improper recording of Plaintiff’s conviction
because
she
did
not
personally
review
or
sign
Plaintiff’s
commitment records, and there was no indication that she could
have ratified the error.
(Id. at 43-44).
Accordingly, there is
no reason to disturb the memorandum opinion and order.
Second,
Plaintiff
contends
that
recent
case
law
of
the
United States Court of Appeals for the Fourth Circuit requires
that Defendant prove entitlement to sovereign immunity under the
Eleventh
Amendment.
Plaintiff
also
moves
to
reopen
the
sovereign immunity issue “previously decided by an interlocutory
order.”
(ECF No. 91, at 1).
Motions for reconsideration of an
interlocutory order are governed by Fed.R.Civ.P. 54(b), under
which “any order or other decision . . . may be revised at any
time before the entry of a judgment adjudicating all the claims
and
all
the
parties’
rights
and
liabilities.”
Thus,
when
warranted, a district court retains the power to reconsider and
modify
its
interlocutory
judgment.
514–15
at
any
time
before
final
Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505,
(4th
Builders,
judgments
Cir.
Inc.,
2003);
936
Fayetteville
F.2d
1462,
1469
Investors
(4th
v.
Cir.
Commercial
1991)
(“An
interlocutory order is subject to reconsideration at any time
5
prior
to
the
entry
of
a
final
judgment.”).
Judgments
are
generally final only when they adjudicate and resolve all claims
as to the parties.
Moore v. Lightstorm Ent., No. RWT-11-3644,
2013 WL 4052813, at *3 (D.Md. Aug. 9, 2013) (citing Millville
Quarry Inc. v. Liberty Mut. Fire Ins. Co., 217 F.3d 839, 2000 WL
1005202,
(4th
*3
Cir.
2000)).
The
July
9,
2015
memorandum
opinion and accompanying order entered summary judgment in favor
of Defendant and denied Plaintiff’s motions.
a
final
judgment,
reconsideration
of
Plaintiff
an
can
interlocutory
Given the entry of
no
order,
longer
as
he
request
does
here.
Plaintiff’s motion to reopen the sovereign immunity issue will
be denied.
Were Plaintiff able to contest the sovereign immunity issue
through
his
Rule
59(e)
motion
for
reconsideration,
he
nonetheless fails to provide a sufficient basis to alter or
amend the court’s decision.
Plaintiff argues that “Defendant[]
. . . failed to adequately address [her] burden of proof” to
demonstrate entitlement to sovereign immunity, and he suggests
that the issue should be rebriefed.
Although
Plaintiff
mistakes
the
(ECF No. 92-3, at 7).
case
law
he
cites
as
constituting a change in Fourth Circuit controlling law, the
substantive law governing the application of sovereign immunity
remains the same.
Hutto v. South Carolina Retirement System did
not materially alter the analysis and relevant considerations in
6
determining
whether
entity
or
official
773 F.3d 536 (4th Cir. 2014).
immunity.
Circuit
an
in
Hutto
reiterated
that
enjoys
sovereign
Rather, the Fourth
“the
most
important
consideration is whether the state treasury will be responsible
for paying any judgment that might be awarded.
Thus, if the
State treasury will be called upon to pay a judgment against a
governmental entity, then Eleventh Amendment immunity applies to
that entity.”
Id.
marks omitted).
at 543 (citations and internal quotation
At the dismissal stage, a proper analysis of
relevant factors and considerations was conducted.
9, at 12-18).
(See ECF No.
It was determined that, “[c]onsidering that a
judgment against Defendant would likely be paid from the state
treasury,
that
constitution,
and
her
position
that
her
is
created
duties
are
by
defined
the
by
Defendant is a state official under Maryland law.”
18).
Plaintiff
cannot
point
to
an
intervening
state
statute,
(Id. at 17change
in
controlling law that would give the court pause to reconsider
its judgment.
Third, Plaintiff asserts that “[t]he Court may have made
several
submitted
misinterpretations
in
this
case.”
of
the
(ECF
No.
evidence
and
documents
92-3,
8).
However,
at
Plaintiff does not offer new evidence that was unavailable at
trial.
To
the
contrary,
he
repeats
previous
arguments
concerning available evidence and raises a new argument that the
7
statute
of
defamation
(“MTCA”).
limitations
claim
was
brought
tolled
under
the
or
did
not
Maryland
apply
his
Claims
Tort
to
Act
The Fourth Circuit has cautioned that a party may not
employ a Rule 59(e) motion to “raise arguments which could have
been raised prior to the issuance of the judgment . . . [or]
argue a case under a novel legal theory that the party had the
ability to address in the first instance.”
F.3d
at
opinion
403
(citations
clearly
omitted).
determined
that
Even
clerks
Pac. Ins. Co., 148
so,
“are
the
memorandum
considered
state
personnel under the MTCA and are immune from personal liability
for allegedly tortious acts or omissions that are within the
scope of their public duties and are made without malice or
gross negligence.”
(ECF No. 88, at 46 (citing Estate of Saylor
v. Regal Cinemas, Inc., 54 F.Supp.3d 409, 422 (D.Md. 2014))).
Accordingly, Plaintiff’s claims would be barred by Defendant’s
statutory immunity under the MTCA.
Plaintiff
regarding
also
his
seeks
Article
40
to
relitigate
defamation
previous
claim,
his
arguments
claim
of
ineffective assistance of counsel, his contention that double
jeopardy applies, and his assertions that the available evidence
demonstrates
Defendant’s
malice
or
constitutes admissions of liability.
gross
negligence
or
(ECF No. 92-3, at 9-14).
Again, Plaintiff does not offer new evidence or identify any
intervening
change
in
controlling
8
law.
To
justify
reconsideration
on
the
basis
of
manifest
error,
the
prior
decision cannot be “just maybe or probably wrong; it must . . .
strike [the court] as wrong with the force of a five-week-old,
unrefrigerated dead fish.”
TFWS, Inc. v. Franchot, 572 F.3d
186, 194 (4th Cir. 2009) (citation and internal quotation marks
omitted).
Here, Plaintiff fails to show that an amendment of
the prior memorandum opinion is necessary to prevent manifest
injustice.
Plaintiff’s reiteration of prior arguments reveals a
“mere disagreement” with the court’s decision and thus is an
insufficient
basis
for
such
an
extraordinary
remedy.
See
Hutchinson v. Staton, 994 F.2d 1076, 1082 (4th Cir. 1993).
Fourth,
Plaintiff
argues
that
a
determination
in
the
memorandum opinion “may be based in issues that were beyond the
adversarial issues presented to the Court.”
2).
(ECF No. 92-3, at
That is, Plaintiff contends that the court reconsidered its
prior
holding
when
it
“characterized
[Plaintiff’s]
conviction as simply an error made by the Defendant[].”
14).
false
(Id. at
Plaintiff mistakes the court’s prior determination “that
there was a proper allegation of a ‘stigma-plus’ claim” for a
finding
claim.
that
Plaintiff
(Id. at 15).
had
sufficiently
demonstrated
such
a
Denying Defendant’s motion to dismiss, the
court found that Plaintiff had “set forth a sufficient § 1983
claim against Defendant in her individual capacity, albeit by a
very thin margin.”
(ECF No. 9, at 30).
9
Contrary to Plaintiff’s
assertion, however, the July 9, 2015 memorandum opinion did not
reverse a previous holding or conflict with the court’s analysis
at the dismissal stage.
Rather, that Plaintiff sufficiently
pleaded a § 1983 claim against Defendant did not relieve him of
his burden to provide facts and demonstrate the elements of such
a claim.
Indeed, Plaintiff was warned that he would “ultimately
be required to show prior instances of misconduct to prevail on
his supervisory liability claim.”
(Id. at 29).
At the summary
judgment stage, Plaintiff “failed to meet his heavy burden of
establishing
[Defendant’s]
‘continued
inaction
abuses.’
Moreover,
in
deliberate
the
face
Plaintiff
has
indifference
of
documented
failed
to
by
showing
widespread
establish
an
affirmative causal link between his injury and the purported
inactions of Defendant.”
(ECF No. 88, at 37-38 (quoting Slakan
v. Porter, 737 F.2d 368, 373 (4th Cir. 1984))).
The memorandum
opinion granting summary judgment in favor of Defendant was not
clearly erroneous and did not work manifest injustice.
Thus,
this ground for reconsideration is also meritless.
Plaintiff has not met the high bar he faces to succeed on
his motion for reconsideration under Rule 59(e).
that
Plaintiff
advances
new
arguments
in
To the extent
his
motion
for
reconsideration, they are arguments that were available to him
and should have been raised in his prior filings.
Plaintiff
cannot point to an intervening change in controlling law since
10
the July 9, 2015 memorandum opinion and order.
evidence that has since come to light.
He offers no new
And Plaintiff fails to
identify any clear error of law or manifest injustice to warrant
this extraordinary remedy.
Accordingly, Plaintiff has not met
the grounds for reconsideration under Rule 59(e).
IV.
Conclusion
For
the
foregoing
reasons,
Plaintiff’s
motions
for
reconsideration and to reopen the sovereign immunity issue will
be denied.
United
Thus, it is this 5th day of October, 2015, by the
States
District
Court
for
the
District
of
Maryland,
ORDERED that:
1.
Plaintiff Mark Panowicz’s motion for reconsideration
(ECF No. 90) BE, and the same hereby IS, DENIED;
2.
Plaintiff
Mark
Panowicz’s
motion
to
reopen
the
sovereign immunity issue (ECF No. 91) BE, and the same hereby
IS, DENIED; and
3.
Opinion
The
and
clerk
Order
will
to
transmit
counsel
for
copies
of
Defendant
this
and
Memorandum
directly
Plaintiff.
/s/
DEBORAH K. CHASANOW
United States District Judge
11
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