Payne v. University of Southern Mississippi et al

Filing 169

MEMORANDUM OPINION AND ORDER denying 150 Motion for Reconsideration. Signed by District Judge Keith Starrett on 4/8/2014 (scp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
THOMAS PAYNE

PLAINTIFF

V.

CIVIL ACTION NO. 1:12-CV-41-KS-MTP

THE UNIVERSITY OF SOUTHERN
MISSISSIPPI, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
The Court discussed the background of this case in its Memorandum Opinion
and Order [147] of February 21, 2014. Payne v. Univ. of S. Miss., No. 1:12-CV-41-KSMTP, 2014 U.S. Dist. LEXIS 22052 (S.D. Miss. Feb. 21, 2014). Plaintiff filed a Motion
for Reconsideration [150] of several of the Court’s rulings. For the reasons stated
below, the motion is denied.
A.

Standard of Review
“A motion asking the court to reconsider a prior ruling is evaluated either as a

motion . . . under Rule 59(e) or . . . under Rule 60(b). The rule under which the motion
is considered is based on when the motion is filed. If the motion is filed within twentyeight days after the entry of judgment, the motion is treated as though it was filed
under Rule 59, and if it was filed outside of that time, it is analyzed under Rule 60.”
Demahy v. Schwarz Pharma, Inc., 702 F.3d 177, 182 n. 2 (5th Cir. 2012). Plaintiff’s
Motion for Reconsideration [150] was filed within twenty-eight days of the Court’s
Memorandum Opinion and Order [147] of February 21, 2014, and Rule 59(e) applies.
“A Rule 59(e) motion calls into question the correctness of a judgment.” Templet

v. Hydrochem Inc., 367 F.3d 473, 478 (5th Cir. 2004). “[S]uch a motion is not the proper
vehicle for rehashing evidence, legal theories, or arguments that could have been
offered or raised before the entry of judgment. Rather, Rule 59(e) serves the narrow
purpose of allowing a party to correct manifest errors of law or fact or to present newly
discovered evidence.” Id.; see also United Nat’ Ins. Co. v. Mundell Terminal Servs., 740
F.3d 1022, 1031 (5th Cir. 2014). It is “an extraordinary remedy that should be used
sparingly.” Templet, 367 F.3d at 478.
B.

Grievances
First, Plaintiff argues that the Court should not have granted summary

judgment on the due process claims arising from his grievances because they were part
of “continuing violations.” Plaintiff did not present this argument in his original briefs
[117, 118, 119, 120], although he could have done so. Therefore, the Court denies
Plaintiff’s Motion for Reconsideration [150] with respect to this issue. Templet, 367
F.3d at 478; Nationalist Movement v. Town of Jena, 321 F. App’x 359, 364 (5th Cir.
2009).
Next, Plaintiff argues that Defendants “confessed” that Plaintiff was entitled to
due process in the handling of his grievances. Indeed, as the Court noted in its previous
opinion, Plaintiff was entitled to the process outlined in the University Policies and
Procedures, and Russ Willis failed to comply with that process with respect to the
February 2009 grievance. Payne, 2014 U.S. Dist. LEXIS 22052 at *36-*38. Plaintiff,
however, failed to present any evidence that the individual Defendants were causally
connected to these actions. See Jones v. Lowndes County, 678 F.3d 344, 349 (5th Cir.
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2012) (Section 1983 defendant must be personally involved in deprivation or causally
connected to it); Wernecke v. Garcia, 591 F.3d 386, 401 (5th Cir. 2009) (supervisory
officials liable under 1983 only if they affirmatively participate in deprivation or
implement policies which cause it). Therefore, Defendants’ purported “confession” is
immaterial to the basis of the Court’s ruling on the grievance of February 2009.
As for the grievance of July 2009, Plaintiff was entitled to the grievance process
outlined in the University Policies and Procedures, Payne, 2014 U.S. Dist. LEXIS
22052 at *38-*39, and – as the Court previously explained – he received it. Therefore,
Defendants’ “confession” is irrelevant to the basis of the Court’s decision.
Finally, Plaintiff argues that he was not required to exhaust his administrative
remedies before bringing a Section 1983 claim. Nothing in the Court’s previous opinion
related to exhaustion of administrative remedies, and this argument is irrelevant.
C.

Outside Employment
Plaintiff argues that Defendant Saunders violated his right to due process by

failing to take action on his requests for permission to engage in outside employment.
For a plaintiff to have a substantive or procedural due process claim that can be
remedied by the Court, he must have been denied a life, liberty, or property interest
protected by the Fourteenth Amendment. Wilson v. Birnberg, 667 F.3d 591, 597 (5th
Cir. 2012); Lewis v. Univ. of Tex. Med. Branch, 665 F.3d 625, 630 (5th Cir. 2011). The
Court previously ruled that Plaintiff possessed no Fourteenth Amendment life, liberty,
or property interest in permission to engage in outside employment. Therefore,
Saunders’ actions are irrelevant to the basis of the Court’s ruling.
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D.

August 2010 Non-Renewal
The Court previously granted summary judgment as to Plaintiff’s due process

claim arising from the non-renewal letter sent to him in August 2010. Plaintiff now
contends that the claim is for “wrongful targeting” for termination, rather than
termination itself. But Plaintiff has consistently framed the adverse employment
action as the alleged termination itself, rather than the alleged targeting. Plaintiff’s
recent argument to the contrary is disingenuous, and he may not recast a “wrongful
termination” claim as one for “wrongful targeting for termination” mere weeks before
trial.
E.

Evaluations
Plaintiff contends that he previously offered evidence that the outcome of his

performance reviews for calendar years 2008 and 2009 were based upon discriminatory
intent. Rule 59(e) motions are not the “proper vehicle for rehashing evidence”
previously presented to the Court. Templet, 367 F.3d at 478. Accordingly, the Court
denies Plaintiff’s Motion for Reconsideration [150] with respect to this issue.
F.

Defendant Whitehead
Plaintiff disagrees with the Court’s ruling that Defendant Whitehead was

entitled to qualified immunity for delaying the completion of his 2009 performance
review, citing certain evidence in the record. Rule 59(e) motions are not the “proper
vehicle for rehashing evidence” previously presented to the Court. Templet, 367 F.3d
at 478. Accordingly, the Court denies Plaintiff’s Motion for Reconsideration [150] with
respect to this issue.
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G.

Conclusion
For all of the reasons stated above, the Court denies Plaintiff’s Motion for

Reconsideration [150].
SO ORDERED AND ADJUDGED this 8th day of April, 2014.

s/ Keith Starrett
UNITED STATES DISTRICT JUDGE

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