Jacobs v. Alam et al

Filing 148

ORDER Denying Defendants' Motion for Reconsideration [#130; #133]. Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EDUARDO JACOBS,
Plaintiff,

CASE NO. 15-10516
HON. DENISE PAGE HOOD

v.
RAYMON ALAM, et al.,
Defendants.
/
ORDER DENYING DEFENDANTS’ MOTION FOR
RECONSIDERATION [#130; # 133]
I.

BACKGROUND
This matter is now before the Court on Defendants Ramon Alam (“Alam”)

and David Weinman’s (“Weinman”) (collectively, “Defendants”) Motion for
Reconsideration pursuant to E.D. Mich. L.R. 7.1(h) and Fed. R. Civ. P. 59(e), filed
on September 5, 2017.

(Doc # 130)

Defendants Damon Kimbrough

(“Kimbrough”) and Michael Knox (“Knox”) filed a Concurrence and Joinder in
their co-Defendants’ present Motion. (Doc # 133) On November 13, 2015, this
Court entered an Order Granting Defendants’ Motion for Summary Judgment on
Count II, and dismissed Count II of the First Amended Complaint. (Doc # 37) On
August 23, 2017, this Court entered an Order denying Defendants’ Motions for
Summary Judgment on Plaintiff Eduardo Jacobs’s (“Jacobs”) Bivens claim (Count
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I) for excessive force, fabrication of evidence, civil conspiracy, false arrest, and
malicious prosecution against Alam; Jacobs’s Bivens claim for fabrication of
evidence and civil conspiracy against Weinman; and Jacobs’s Bivens claim for
excessive force, fabrication of evidence, civil conspiracy, false arrest, and
malicious prosecution against Kimbrough.

(Doc # 125)

The Court granted

Defendant Knox’s summary judgment motion regarding all of Jacobs’s claims
against him, and dismissed Knox from this action. (Id.) Defendants now seek
reconsideration of the August 23, 2017 Order regarding the aforementioned Bivens
claims. For the reasons set forth below, Defendants’ Motion for Reconsideration is
DENIED.
II.

ANALYSIS

A. Standard of Review
Under Federal Rule of Civil Procedure 59(e), “[a] motion to alter or amend a
judgment must be filed no later than 28 days after the entry of the judgment.” A
Rule 59(e) motion may be granted (1) to correct a clear error of law; (2) to account
for newly discovered evidence or an intervening change in the controlling law; or
(3) to otherwise prevent manifest injustice.

GenCorp, Inc. v. Am. Int’l

Underwriters, 178 F.3d 804, 834 (6th Cir. 1999). A district court has the authority
to equate a Rule 59(e) motion with a timely filed motion for reconsideration. See
United States v. Savage, 99 F. App’x 583, 584-85 (6th Cir. 2004) (holding district
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court has discretion to equate motions for reconsideration with Federal Rule of
Civil Procedure 59(e) motions).
The Local Rules of the Eastern District of Michigan provide that any motion
for reconsideration must be filed within 14 days after entry of the judgment or
order. E.D. Mich. LR 7.1(h)(1). No response to the motion and no oral argument
thereon are permitted unless the Court orders otherwise.

Id. at 7.1(h)(2).

Defendants’ Motion is timely filed.
Local Rule 7.1 further states:
(3) Grounds. Generally, and without restricting the court’s
discretion, the court will not grant motions for rehearing or
reconsideration that merely present the same issues ruled upon by the
court, either expressly or by reasonable implication. The movant must
not only demonstrate a palpable defect by which the court and the
parties and other persons entitled to be heard on the motion have been
misled but also show that correcting the defect will result in a
different disposition of the case.
Id. at 7.1(h)(3).

“A ‘palpable defect’ is a defect which is obvious, clear,

unmistakable, manifest, or plain.” Fleck v. Titan Tire Corp., 177 F. Supp. 2d 605,
624 (E.D. Mich. 2001). A motion for reconsideration is not a vehicle to re-hash
old arguments, or to proffer new arguments or evidence that the movant could have
brought up earlier. Sault Ste. Marie Tribe v. Engler, 146 F.3d 367, 374 (6th Cir.
1998) (motions under Fed. R. Civ. P. 59(e) “are aimed at re consideration, not
initial consideration”) (citing FDIC v. World Universal Inc., 978 F.2d 10, 16 (1st
Cir. 1992)).
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B. Palpable Defect
Defendants assert that two recent decisions from the Supreme Court—Ziglar
v. Abbasi, 137 S. Ct. 1843 (2017), and Hernandez v. Mesa, 137 S. Ct. 2003
(2017)–mandate that this Court determine whether Bivens can be extended to cover
the constitutional torts of excessive force, false arrest, malicious prosecution,
fabrication of evidence, and civil conspiracy, before ruling on Defendants’
Motions for Summary Judgment.

Defendants’ assertion is reliant upon their

contention that “no binding precedent from the Supreme Court or the Sixth Circuit
has held that Bivens recognizes” those torts. (Doc # 130, Pg ID 6) Defendants
argue that this Court’s failure to treat the alleged Bivens violations as “new” Bivens
claims was a palpable defect in light of the Supreme Court’s recent decisions. This
Court disagrees.
In Abbasi, the issue was whether Bivens could allow Fourth, Fifth, and Eight
Amendment claims brought by alien detainees–as a means to investigate the events
surrounding the September 11, 2001 attacks–against high ranking officials from
the executive branch and a federal prison. Before evaluating an alleged Bivens
claim, a court must first determine (1) whether the case presents a new Bivens
context, and if so, (2) whether there are “special factors counseling hesitation in the
absence of affirmative action by Congress.” Abbasi, 137 S. Ct. at 1857 (citations
omitted). The Supreme Court established the test for determining whether a claim
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arises under a new Bivens action. Id. at 1864. A court should determine whether
the “case is different in a meaningful way from previous Bivens cases decided by
[the Supreme Court].” Id. at 1860 (emphasis added) (citation omitted). The
Supreme Court also identified a number of “meaningful differences” that may
create a new Bivens context. Id.1
In Hernandez, the issue was whether Bivens extended to Fourth and Fifth
Amendment claims brought by the parents of a Mexican national who was shot and
killed while standing on Mexican soil, by a U.S. Border Patrol agent standing on
United States soil. The Supreme Court remanded the case, instructing the Fifth
Circuit to consider how the reasoning and analysis in Abbassi would bear on the
Bivens issue in the first instance. Hernandez, 137 S. Ct. at 2006-08.
Defendants are correct that Abbasi and Hernandez instruct federal courts to
consider whether “new” Bivens claims should be created in cases where the
Supreme Court has not already authorized the cause of action.

Defendants

erroneously assert, however, that there is no binding Sixth Circuit precedent
recognizing the torts alleged in the current suit. To the contrary, there is Sixth
Circuit precedent recognizing every Bivens context in question. See, e.g., Webb v.
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The Supreme Court created a non-exhaustive list of potential “meaningful differences” including:
(1) the rank of the government officer involved; (2) the constitutional right at issue; (3) the
generality or specificity of the officer action; (4) judicial guidance as to how the officer should
address the issue; (5) the legal authority under which the officer was acting; (6) the risk of intrusion
by the Judiciary into the other branches of government (the separation of powers); or (7) the
presence of potential “special factors.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1860 (2017).
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United States, 789 F.3d 647, 659-60, 666-72 (6th Cir. 2015) (discussing the merits
of Bivens actions for malicious prosecution, false arrest, fabrication of evidence,
and civil conspiracy); Robertson v. Lucas, 753 F.3d 606, 618 (6th Cir. 2014)
(discussing merits of Bivens action for false arrest); Burley v. Gagacki, 729 F.3d
610, 621 (6th Cir. 2013) (explaining plaintiff’s burden on motion for summary
judgment in Bivens action for excessive force).
Defendants essentially argue that this Court should reevaluate settled law of
the Sixth Circuit in light of two cases that involve Bivens contexts that were both
unprecedented and distinct from the law enforcement context present in the current
case. Sixth Circuit precedent is binding on this Court. Defendants also fail to
acknowledge the Supreme Court’s statements regarding settled Bivens law.
Writing for the Court, Justice Kennedy explained, “The settled law of Bivens in
this common and recurrent sphere of law enforcement, and the undoubted reliance
upon it as a fixed principle in the law, are powerful reasons to retain it in that
sphere.”

Abbasi, 137 S. Ct. at 1857.

The Supreme Court cautioned against

expanding the reach of Bivens, not calling into question its existing scope.
Defendants alternatively request that this Court reconsider its evaluation of
the undisputed facts on the record. Defendants, however, have not identified any
palpable error that misled this Court. This Court notes that Defendants have
attempted to raise new arguments in their Motion for Reconsideration regarding (1)
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Jacobs’s malicious prosecution claim against Alam, and (2) Jacobs’s fabrication of
evidence and conspiracy claims against Alam and Weinman. This Court declines
to consider these arguments as they fail to raise a palpable defect. Defendants have
not met their burden on a Motion for Reconsideration. Defendants’ Motion for
Reconsideration is DENIED.
III.

CONCLUSION
For the reasons set forth above,
IT IS HEREBY ORDERED that Defendants Ramon Alam and Dave

Weinman’s Motion for Reconsideration (Doc # 130) is DENIED.
IT IS FURTHER ORDERED that Defendants Damon Kimbrough and
Michael Knox’s Motion for Reconsideration (Doc # 133) concurring and joining in
their co-Defendants’ Motion (Doc # 130) is DENIED.

S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated:  January 19, 2018
I hereby certify that a copy of the foregoing document was served upon counsel
of record on January 19, 2018, by electronic and/or ordinary mail.
s/LaShawn R. Saulsberry                                          
Case Manager

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