Liverman et al v. City of Petersburg et al

Filing 68

MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 9/1/2015. Memorandum Opinion was sent to all counsel of record. (sbea, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION

HERBERT E. LIVERMAN, et al.,
Plaintiffs,
v.

Civil Action No. 3:14–CV–139

CITY OF PETERSBURG, et al.
Defendants.

MEMORANDUM OPINION
THIS MATTER is before the Court on a Motion to Alter and Amend Judgment
(“Motion”), pursuant to Federal Rule of Civil Procedure 59(e), filed by Plaintiffs Herbert E.
Liverman (“Liverman”) and Vance R. Richards (“Richards”) (collectively, “Plaintiffs”). ECF No.
59. For the reasons stated below, the Court will DENY Plaintiffs’ Motion.
I.

FACTUAL AND PROCEDURAL BACKGROUND
The instant case arose after Plaintiffs were put on probation for posting comments on the

social media website, Facebook. On March 5, 2014, Plaintiffs filed a Complaint, alleging several
42 U.S.C § 1983 claims against Defendants. In general, Plaintiffs alleged that Defendants City of
Petersburg (“the City”) and John I. Dixon, III (“Chief Dixon”) (collectively, “Defendants”)
violated their First Amendment rights by subjecting them to an unconstitutional Social
Networking Policy.

In particular, Plaintiffs claimed that the City of Petersburg Police

Department (“the Department”) improperly impinged upon their rights under the Free Speech
Clause of the First Amendment by preventing them, through its written policies, from speaking
out as citizens regarding matters of public concern and by retaliating against them for seeking to
exercise these rights. Defendants denied liability in all respects and, in Chief Dixon’s individual
capacity, asserted the defense of qualified immunity to Plaintiffs’ claims for monetary damages.

Plaintiffs’ causes of action were grouped into three categories. First, Plaintiffs alleged
First Amendment violations pursuant to the 2010 Social Networking Policy1 and 2013 Social
Networking Policy. Second, Plaintiffs claimed that the Department took adverse employment
actions against them in retaliation for their comments at issue on Facebook. Third, Plaintiffs
alleged that investigations were opened against them in retaliation for their notice of claims in
contravention of the First Amendment.

Plaintiffs sought injunctive relief along with

compensatory and punitive damages. Plaintiffs also sought attorney’s fees.
On October 22, 2014, Plaintiffs filed a Motion for Partial Summary Judgment, requesting
that the Court find that the 2010 Social Networking Policy and the 2013 Social Networking
Policy are unconstitutional. Defendants filed their Opposition on October 31, 2014.

Brief in

Opposition to Plaintiffs’ Motion for Summary Judgment as to Liability, Declaratory Judgment,
and an Injunction as to Counts I and II (“Defs.’ Opp’n Mem.”). Subsequently, on November 3,
2014, Plaintiffs filed a Reply. Reply to Opposition to Plaintiffs’ Motion for Summary Judgment
(“Pls.’ Reply”).
On October 27, 2014, Defendants filed a Motion for Summary Judgment as to all counts
contained in Plaintiffs’ Complaint. Plaintiffs filed their response in opposition on November 6,
2014. Opposition to Defendants’ Motion for Summary Judgment (“Pls.’ Opp’n Mem.”). On
November 10, 2014, Defendants filed their reply brief. Reply Brief in Support of Defendants’
Motion for Summary Judgment (“Defs.’ Reply”).
On May 6, 2015, the Court issued an Order and an accompanying Memorandum
Opinion, in which it GRANTED IN PART and DENIED IN PART Plaintiffs’ Motion for Summary
Judgment. Specifically, the Court found that Liverman’s speech at issue regarded a matter of
public concern while Richards’ speech, in contrast, regarded private matters. As such, the Court
GRANTED Plaintiffs’ Motion for Summary Judgment as to Count I of Plaintiffs’ Complaint and
DENIED Plaintiff’s Motion for Summary Judgment as to Count II. Accordingly, the Court
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The 2010 Social Networking Policy was not relevant or actionable under the facts.
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DENIED Defendants’ Motion for Summary Judgment as to Count I and GRANTED Defendants’
Motion for Summary Judgment as to Count II. The Court then GRANTED Defendants’ Motion
for Summary Judgment as to Counts III and IV, finding that Chief Dixon was entitled to
qualified immunity and that no municipal liability attached because the City did not ratify the
2013 Social Networking Policy. Further, the Court found that the City and Chief Dixon did not
violate Plaintiffs’ First Amendment Rights to petition the government for redress by retaliating
against them for noticing their claims. As such, the Court GRANTED Defendant’s Motion for
Summary Judgment as to Counts V and VI of Plaintiffs’ Complaint.
On May 20, 2015, Plaintiffs filed the Motion to Alter and Amend Judgment now before
the Court. Plaintiffs dispute each of the aforementioned rulings against them.
II.

LEGAL STANDARD
Federal Rule of Civil Procedure 59(e) governs motions to alter or amend a judgment;

however, the rule does not provide a standard that courts may use to grant such motions. The
Fourth Circuit articulated “three grounds for amending an earlier judgment:

(1) to

accommodate an intervening change in controlling law; (3) to account for new evidence not
available at trial; or (3) to correct a clear error of law or prevent manifest injustice.” Pac. Ins.
Co. v. Am. Nat. Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998) (citing EEPC v. Lockheed Martin
Corp., 116 F. 3d 110, 112 (4th Cir. 1997); Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir.
1993). “Rule 59(e) motions may not be used, however, to raise arguments which could have
been raised prior to the issuance of the judgment, nor may they be used to argue a case under a
novel legal theory that the party had the ability to address in the first instance.” Pac. Ins. Co.,
148 F.3d at 403 (internal citations omitted). Rule 59(e) provides an “extraordinary remedy that
should be used sparingly.” Id. (internal citation omitted).

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III.

PARTIES’ ARGUMENT
1. WHETHER THE COURT APPLIED THE RIGHT STANDARD AS TO
COUNT II
i.

Plaintiffs

Plaintiffs do not specifically identify or refer to where they believe the Court erred in its
Memorandum Opinion issued on May 6, 2015. Instead, they generally argue that the Court
improperly “adopted the Pickering/NTEU analysis, and concluded based on Harman v. City of
N.Y., 140 F.3d 111, 118 (2d Cir. 1998) that this eliminates any distinction between facial and asapplied challenges, essentially collapsing Counts III IV into Counts 1 and II.” Memorandum in
Support of Motion for Summary Judgment as to Liability, Declaratory Judgment, and An
Injunction as to Counts I and II of Plaintiffs’ Complaint (“Pls.’ Mem.”) at 1. Plaintiffs assert the
following:
There is a difference . . . between challenges to an employment policy
limiting a public employer’s2 speech and challenges to an individual
adverse employment action based on a public employer’s3 speech (action
not based on a policy). The latter is judged by the Pickering analysis the Court
actually applied. The former is judged by the distinct Pickering/NTEU the Court
purported to apply.
Id. (emphasis in the original). Plaintiffs argue that when the Court addressed their Motion, it
misapplied the standard articulated in Pickering v. Board of Education, 391 U.S. 563 (1968).
Instead, Plaintiffs argue, the Court should have applied the standard articulated by the Court in
Sanjour, known as the Pickering/NTEU test. If the Court had adopted Plaintiffs’ argument,
they assert that the Court would have “appropriately look[ed] beyond the particulars of
Richard’s comments to conclude that the policy unconstitutionally infringes Richard’s right to
comment as a citizen on matters of public concern.” Id. at 3. Plaintiffs insist that the Court
improperly relied on Sanjour v. EPA, 56 F.3d 85, 90-91 (D.C. Cir. 1995) and Harman v. City of
Although Plaintiffs discuss a public employer’s speech, the Court assumes that Plaintiffs made a
typographical error and intended to discuss a public employee’s speech. Indeed, the Pickering and
NTEU concern speech made by a public employee, not a public employer.
3 Here, too, the Court assumes that Plaintiffs made a mistake and intended to discuss speech made
by a public employee.
2

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N.Y., 140 F.3d 111, 118 (2d Cir. 1998) to find that Richards’ speech on a particular occasion was
not speech on a matter of public concern.
ii.

Defendants’ Opposition

Defendants disagree with Plaintiffs’ proffered assertion that the Court incorrectly
applied the Pickering/NTEU standard to Count II of the Complaint. Defendants argue that
“Plaintiffs’ own arguments favor the Court’s reasoning and ruling.” Defs.’ Opp’n Mem. at 1.
Defendants interpret the Court’s findings in Sanjour differently from Plaintiffs. Defendants
explain that the Court in Sanjour begins by explaining that protected government employee
speech “must involve ‘matters of public concern.’” Id. (quoting Sanjour, 56 F.3d at 90) (citation
omitted). From this language, Defendants argue the following: because the “Court found,
correctly, that Richards’ speech did not involve a matter of public concern . . . . [and] [b]ecause
Richards’ speech did not satisfy this prerequisite, the Court did not, as it should not, reach the
question of whether the 2013 Social Networking policy wrongfully prohibited Richards’ speech.”
Id. at 2. For these reasons, Defendants argue that the Court’s declaratory judgment in favor of
Liverman should not be extended in favor of Richards.
iii.

Plaintiffs’ Reply

Plaintiffs’ argue that the constitutional validity or invalidity of the 2013 Social
Networking Policy is a legal question independent of any adverse employment action
subsequently taken against Plaintiffs on a particular occasion in response to particular Facebook
comments. Plaintiffs turn to “Sanjor v. EPA, 56 F. 3d 85 (D.E. Cir. 1995)”4 to support its
argument. Pls.’ Reply at 2. Plaintiffs assert that the Court in Sanjour did not look at particular
speech, but rather considered whether the challenged regulations prevented the plaintiffs in that
case and similarly situated public employees from addressing matters of public concern. Id.
Similarly, Plaintiffs argue that the Court’s findings in Harman demonstrate that it is not
necessary for a plaintiff to actually speak on a matter of public concern or be disciplined under
Although Plaintiffs continuously cite to “Sanjor v. EPA, 56 F3d 85 (D.E. Cir. 1995), this Court
assumes that Plaintiffs are referring to “Sanjour v. EPA, 56 F.3d 85 (D.C. Cir. 1995).”
4

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the policy at issue in order to challenge the policy as restrictive of speech. Plaintiffs now argue
that the proper question when analyzing the validity of a policy regulating speech is not whether
a particular communication was or was not a matter of public concern, but rather whether the
challenged regulations prevent Plaintiffs and similarly situated public employees from
addressing a matter of public concern.
2. MUNICPAL LIABILITY (OR LACK THEREOF)
i.

Plaintiffs

Plaintiffs argue that “the Court erred in determining that Chief Dixon is not the final
decision maker for the City with respect to the 2013 Social Networking Policy. Essentially, they
focus on Petersburg City Ordinance § 70-36 and Va. Code § 15.2-1701. Specifically, Plaintiffs
acknowledge that it is undisputed that under Petersburg City Ordinance § 70-36, “It shall be the
duty of the chief of police to command and supervise the police force of the city under the
general direction of the city manager, and to see that the duties of the members of such force, as
defined by law and city ordinances, are properly performed.” Plaintiffs, without support, assert
that it is of no matter that the city manager provides “general direction” to the chief of police
because Chief Dixon can still be “the final decision maker for the City as to General Orders
issued regulating the off-duty behavior of City employees—i.e., the City’s police officers.” Pls.’
Mem. at 5. Additionally, Plaintiffs contend that the Fourth Circuit’s findings in Stickley v.
Sutherly, 416 Fed. Appx. 268, 273 (4th Cir. 2011) are inapposite because the Petersburg City
Manager does not possess the broad reservation of authority that the town manager enjoyed in
the Stickley case. They also argue that Crowley v. Prince George's County, Maryland, 890 F.2d
683 (4th Cir. 1989) is inapplicable to the instant matter because that case involved a personnel
decision whereas the issue, here, was one of commanding and supervising a police force.
ii.

Defendants’ Opposition

In opposition to Plaintiffs’ arguments, Defendants fervently argue that the Court was

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correct when it found that Chief Dixon was not a final policy maker. First, Defendants contend
that Plaintiffs ignore the plain language of Petersburg City Ordinances §§ 70-33 and (2), which
provide that the Chief of Police and those in the Department serve at the pleasure of the City
Manager and, additionally, vest the City Manager with police powers and control of and
supervision over the Department. Defs.’ Mem. at 3. Defendants correctly underscore, “After
ignoring these ordinances, Plaintiffs conclude, without authority, that the General Orders of the
Chief of Police are municipal policies if an ordinance does not provide for review by city
officials.” Id.
iii.

Plaintiffs’ Reply

Plaintiffs argue that municipal liability attached in this case because the 2013 Social
Networking Policy was an “express, written, General Order issued by the Chief, who is given by
Petersburg City Code § 70-36 the power to ‘command and supervise the police force of the city
under the general direction of the city manager.’” Pls.’ Reply at 4. Say Plaintiffs, conclusively,
because “it is a written policy established pursuant to a grant of authority by the City Ordinance,
it is an express policy of the City.” Id. Plaintiffs then reassert that “Chief Dixon is the final
policymaker of the City and the Department with respect to the day-to-day rules and regulations
governing the Department, including the establishment of general orders. His decisions are
final, unless perhaps the City Manager overrules the policies.” Id.
3. RICHARDS’ COMMENTS
i.

Plaintiffs

According to Plaintiffs, the Court inappropriately considered Richards’ comments
separate and apart from those Liverman made.

Plaintiffs assert that Richards’ comments

“ratified and built on Liverman’s comments” and were “as much a matter of public concern as
Liverman’s comments.” Pls.’ Mem. at 7.

ii.

Defendants’ Opposition
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Defendants argue that, after considering the content, form, and context of Richards’
comments, the Court engaged in a “well-reasoned discussion,” regarding why Richard spoke on
a matter of private, not public, concern. Defs.’ Opp’n Mem. at 3. Defendants argue that the
Court went through a proper and thoughtful process to arrive to the correct conclusion that
Richards’ comments fell outside the purview of First Amendment protection. Id.
4. QUALIFIED IMMUNITY
i.

Plaintiffs

Plaintiffs insist that the Court erred in determining that qualified immunity protected
Chief Dixon with respect to disciplining Liverman and Richards. To support their position,
Plaintiffs conclusively argue that “the statements of Liverman (and Richards) are clearly about a
matter of public concern.” Pls.’ Mem. at 7.
ii.

Defendants’ Opposition

Defendants argue, “The comments made by Liverman and Richards were not ‘clearly’ a
matter of public concern, as argued by Plaintiffs.” Defs.’ Opp’n at 3. To support their position,
Defendants look to the Fourth Circuit’s findings in Stickley. In Stickley, the Fourth Circuit
explained that the determination of whether a comment is of public or private concern is very
fact-intensive and the balancing of interests very subjective. Id. at 3 (citing Stickley, 416 Fed.
Appx. at 272). Defendants argue that this Court heeded the Fourth Circuit’s directive and thus
asserts that this Court correctly determined Chief Dixon is entitled to qualified immunity.
5. THE COURT’S DETERMINATION AS TO THE NOTICE OF CLAIMS
ALLEGATIONS
i.

Plaintiffs

Without support, Plaintiffs argue that the “Court further erred in finding that the
discipline following Plaintiff’s notice of claims was not pretextual, especially as the Chief of
Police exercised extensive control over the internal investigation process.” Pls.’ Mem. at 8.
According to Plaintiffs, “[f]airly considered, the internal investigations were fishing expedition.”

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Id. To support their position, Plaintiffs argue, in part, the following: (1) “[t]he first investigation
had an unlimited timeframe and a broad scope”; (2) “[t]he second investigation against
Liverman involved the Chief of Police summarily directing a sergeant to discipline Liverman”;
(3) “[t]he investigation concerning Richards was baseless . . . [and] [t]he fact that it was
dismissed with no finding of fault does not mean it was not retaliatory or damaging”; and (4)
[t]he second investigation purported to investigate one issue but punished him on a separate
issue.” Id.
ii.

Defendants’ Opposition

In essence, Defendants argue that the Court was presented with undisputed facts,
showing that that most of the investigations cited by Plaintiffs as the bases of their claims
alleged in their Complaint were made by fellow officers.

Defendants proffered evidence,

demonstrating how Liverman’s counsel made a Freedom of Information Act (“FOIA”), 5 U.S.C. §
552, which led to the discovery of inappropriate emails.

Further, Defendants argue that

Liverman even admitted, in writing, that he engaged in sexual relations “on department time
and on and in department property.” Defs.’ Opp’n Mem. at 4. Say Defendants, Plaintiffs fail to
raise any new facts or arguments to justify the Court’s reconsideration or amendment of its
decision on these claims.
iii.

Plaintiffs’ Reply

Plaintiffs argue that “the Court misinterpreted various facts.” Pls.’ Reply at 7. For
example, Plaintiffs contend that the Court erred in finding that it “became clear that Liverman
was having sex on the job and using Department property to engage in sexual conduct.” ECF
No. 54 at 35. Plaintiffs argue that the Court ignored evidence of pretext, arguing that other
officers were disciplined for having sex on the job and Liverman’s punishment was
disproportionate by comparison. See id.

6. INJUNCTIVE RELIEF
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i.

Plaintiffs

Plaintiffs assert that the “Court erred in refusing an injunction merely because it was not
explicitly addressed” in their moving papers. Id. at 8. As to Richards, Plaintiffs submit that he
should be entitled to an injunction since he remains subject to the 2013 Social Networking
Policy as long as he remains employed with the Department. Additionally, Plaintiffs assert,
“Richards and Liverman are also entitled to injunctive relief to have their discipline for violating
the policy stricken from their personnel files, and not used in any personnel or disciplinary
decisions.” In the alternative, Plaintiffs now argue that the Court should hold an evidentiary
hearing on the issue of whether the prerequisites for an injunction exist in this case.
ii.

Defendants’ Opposition

In short, Defendants argue that Plaintiffs failed to request injunctive relief in their
moving papers and did not argue the elements necessary to support such relief. As such,
Defendants insist that Plaintiffs cannot now argue that the Court erred to give them the relief
they failed to initially request. Therefore, Defendants ask that the Court not alter or amend its
decision to deny injunctive relief.
IV.

ANALYSIS
The first two grounds found in Pacific Insurance are inapplicable to Plaintiffs’ Motion.

Therefore, the Court must determine whether its May 6, 2015 Order must be amended “to
correct a clear error of law or prevent manifest injustice.”
Plaintiffs’ arguments for amending the Court’s judgment are unpersuasive. Plaintiffs
assert the following arguments. First, Plaintiffs assert that the “Court erred in its application
and interpretation of the appropriate standard as to Counts I through IV, especially as to Counts
I and II.” Pls.’ Mem. at 1. Further, as to municipal liability, Plaintiffs assert that the “Court
erred in determining that the Chief is not the final decision maker for the City with respect to the
2013 Social Networking Policy.” Id. at 4. Plaintiffs then argue that the “Court erred in finding
that Richards spoke on a matter of purely private concern” because it inappropriately
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considered Richards’ comments separate and apart from those made by Liverman. Id. at 6.
Moreover, Plaintiffs argue that the “Court erred in determining the [sic] that qualified immunity
protected Chief Dixon with respect to disciplining Liverman (or Richards).” Id. at 7. Plaintiffs
also contend that the “Court erred in finding that the discipline following . . . [Plaintiffs’] notice
of claims was not pretextual, especially as the Chief of Police exercised extensive control over the
internal investigation process.” Id. at 8. Finally, Plaintiffs also assert that the “Court erred in
refusing an injunction merely because it was not explicitly addressed” in their moving papers.
Id. at 8. The Court will address Plaintiffs’ arguments in chronological order.
1. WHETHER THE COURT APPLIED THE RIGHT STANDARD AS TO
COUNT II
As far as the Court can decipher, Plaintiffs take issue with the Court’s footnote in its May
6, 2015 Order, which provided the following:
To the extent Plaintiffs assert any facial, as applied, or overbreath
challenges to the 2013 Social Networking Policy, or rely upon the
Supreme Court’s prior restraint doctrine, this Court follows the approach
taken in other courts, which have indicated that these claims merge into
the Pickering/NTEU analysis. See Harman v. City of N.Y., 140 F.3d 111,
118 (2d Cir. 1998) (“[U]nder the Pickering/NTEU test[,] the distinction
between
facial
as-applied
constitutional
challenges
becomes
unimportant”); Weaver v. United States Info. Agency, 87 F.3d 1429, 1440
(D.C. Cir. 1996) (holding that the special concerns implicated by prior
restraints can be addressed in the Pickering analysis).
ECF No. 54 at 11 n.14.
First, Plaintiffs argue “that the constitutional validity of invalidity of the 2013 Social
Networking Policy is a legal question independent of any adverse employment action
subsequently taken against . . . Plaintiffs on a particular occasion in response to particular
Facebook comments.” Pls.’ Reply at 1. Second, they add that “[i]f it was unconstitutional to
establish the [2013 Social Networking] Policy, then the establishment of . . . [that policy]
violated the rights of both Liverman and Richards, as they were both subjected to the Policy.
Finally, Plaintiffs maintain that Sanjour and Harman stand in opposition to the Court’s analysis
in this case.
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Plaintiffs’ argument—that being, the Court applied the wrong test on the issue of public
concern in Count II because whether adverse employment action was taken is of no matter in
assessing the constitutionality or unconstitutionality of the 2013 Social Networking Policy—is
unavailing. First, the Court’s own analysis mirrors a great deal of that contained in Plaintiffs’
moving papers. For example, in Plaintiffs’ brief in support of their motion for partial summary
judgment as to Counts I and II, Plaintiffs set forth the following road map for the Court:
This claim alleges that the Defendants enacted a policy that threatened
unconstitutional discipline. Adverse employment action violates a public
employee’s right to free speech if: (1) the employee spoke as a citizen on a
matter of public concern, (2) the employee’s and public’s interests in the
First Amendment expression outweighs the employer’s legitimate interest
in the efficient operation of the workplace, if that interest was infringed by
the communication, and (3) the protected speech is a substantial factor in
the decision to take adverse employment action.
Pls.’ Mem. at 9-10 (citing Smith v. Gilchrist, 749 F. 3d 302, 308 (4th Cir. 2014); Love-Lane v.
Martin, 355 F.3d 766, 776 (4th Cir. 2004)). Plaintiffs then asserted that Counts I and II alleged
that “Defendants imposed an unconstitutional Social Networking Policy, chilling employees’ free
speech.” Id. at 11. To be clear, Plaintiffs then asserted one main argument—“As detailed below, .
. . [the 2013 Social Networking Policy] of the Petersburg Police Department . . . each have four
elements that place them in violation of clearly established law.” Id. at 12 (emphasis added).
Thus, in their initial moving papers, Plaintiffs argue the 2013 Social Networking Policy is
unconstitutional because it “expressly” misrepresents that its provisions are “consistent with
established case law,” id. at 20, despite having the following four flaws:
First, these policies ignore any distinction between official speech as a
citizen. “Second, in place of the case-by-case balancing-of-interests
mandated under the First Amendment case law for speech on matters of
public concern, these policies substitute bright line exceptions to the First
Amendment’s protections.
Third, the policies impose bright-line,
content-based prohibitions on certain speech without clearly exempting
speech about matters of public concern, and misrepresents these
prohibitions as consistent with the established case law. Finally, these
policies threaten disciplinary action based on overly broad and ambiguous
policies.

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Id. at 12. Plaintiffs rely on the “leading case of Pickering v. Board of Education” to support their
position that “this case [involves] . . . policies that purport to authorize what the Supreme
[Court] disavowed in Pickering.” Id. at 21 (emphasis in original). In case there was any
confusion, Plaintiffs provide that “[t]he core question for the Court under this motion for
summary judgment is whether Defendants’ . . . 2013 Social Networking Polic[y] . . . [is]
consistent with the Constitutional standards established in the case law. They are not.” Reply to
Opposition to Plaintiffs’ Motion for Summary Judgment (“Pls.’ Reply Defs.’ Opp’n Mot. for
Summ. J.”) at 4. Plaintiffs then expressly reassert the elements required to establish a claim for
adverse employment action. Id.
Plaintiffs now attempt to raise arguments not contained in their initial moving papers
requesting partial summary judgment. Plaintiffs now rely on the approach taken under the
Pickering/NTEU balancing test, which the Court cited in its footnote, to formulate their
argument that serves as the basis for the instant Motion. However, it well-established that “Rule
59(e) motions may not be used to raise argument which could have been raised prior to the
issuance of the judgment. . . .” Pac. Ins. Co., 148 F.3d at 403. Plaintiffs extrapolate legal
arguments and authority from the Court’s Memorandum Opinion to form new arguments.
Plaintiffs’ argument concerning the Court’s two citations to Sanjour fails because Sanjour was
not dispositive here. Likewise, the Court’s sole citation to Harman in a footnote in the Court’s
Memorandum Opinion did not form any basis of the Court’s decision as to the facts of the
instant matter. Plaintiffs, therefore, fail to demonstrate a clear error of law or clearly establish a
manifest error of law.
2. MUNICPAL LIABILITY (OR LACK THEREOF)
Plaintiffs argue that the Court erred in determining that the Chief is not the final
decision maker for the City with respect to the 2013 Social Networking Policy. Plaintiffs also
assert, without authority, that the General Orders of the Chief of Police are municipal policies if
an ordinance does not provide for review by city officials.
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However, Rule 59(e) motions should not be used as opportunities to rehash issues
already ruled upon because a litigant is displeased with the result. See Hutchinson v. Staton,
994 F.2d 1076, 1082 (4th Cir. 1993) (stating that “mere disagreement does not support a Rule
59(e) motion”); see also Consulting Eng'rs, Inc. v. Geometric Software Solutions & Structure
Works LLC, 2007 WL 2021901, at *2 (D.S.C. July 6, 2007) (“A party's mere disagreement with
the court's ruling does not warrant a Rule 59(e) motion, and such motion should not be used to
rehash arguments previously presented or to submit evidence which should have been
previously submitted.”).
Upon review, the Court is not convinced that it should reconsider the judgment based on
the arguments Plaintiffs advance since they have already been considered and rejected.
3. RICHARDS’ COMMENTS
Plaintiffs argue that the Court erred in finding that Richards spoke on a matter of private
concern. Plaintiffs contend that “the Court places undue emphasis on the idiom Richards uses
instead of the substance of his statement in analyzing whether this is a matter of public
concern.”

Pls.’ Mem. at 6.

Additionally, Plaintiffs insist that the Court inappropriately

considered Richards’ comments separate and apart from those made by Liverman. Id.
However, the facts clearly show otherwise.

Plaintiffs’ proffered assertions do not

demonstrate a clear error of law or manifest injustice on the part of this Court. See ECF No. 54
at 17, 18. “‘[Mere disagreement does not support of a Rule 59(e) motion’ on the ground of clear
error of law.” Acevedo v. Colvin, No. CIV.A. 0:12-2137-TMC, 2014 WL 3798813, at *1 (D.S.C.
Aug. 1, 2014) (quoting United States ex rel. Becker v. Westinghouse Savannah River Co., 305 F.
3d 284, 290 (4th Cir. 2003)
4. QUALIFIED IMMUNITY
Plaintiffs argue that the Court erred in determining that qualified immunity protected
Chief Dixon with respect to disciplining Liverman and Richards. In support of its position,
Plaintiffs asserts that “the statements of Liverman (and Richards) clearly were about a matter of
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public concern.” Pls.’ Mem. at 7. This Court disagrees. Indeed, “[W]here a sophisticated
balancing of interests is required to determine whether the plaintiff’s constitutional rights have
been violated, only infrequently will it be ‘clearly established’ that a public employee’s speech on
a matter of public concern is constitutionally protected.”

Stickley, 416 Fed. Appx. at 272

(quoting McVey v. Stacy, 157 F. 3d 271, 277 (4th Cir. 1998)) (citation omitted)). Further, it is
well settled that a motion to reconsider cannot appropriately be granted where the moving party
simply seeks to have the Court “rethink what the court has already thought through—rightly or
wrongly.” In re Yankah, 514 B.R. 159, 165 (E.D. Va. 2014) (Spencer, J.) (quoting Above the Belt,
Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D.Va.1983)). Here, Plaintiffs’ Motion
merely asks the Court to rethink what it already thought through. Plaintiffs have not established
that the Court’s holding that Chief Dixon is entitled to qualified immunity is contrary to law or
manifestly injustice.
5. THE COURT’S DETERMINATION AS TO THE NOTICE OF CLAIMS
ALLEGATIONS
Plaintiffs argue that the Court “erred in finding that the discipline following the
Plaintiff’s notice of claims was not pretextual . . . .” Pls.’ Mem. at 8. Specifically, Plaintiffs argue
that his Court “misinterpreted various facts” in reaching its conclusion.

Pls.’ Reply at 7.

Plaintiffs fail to demonstrate a legally sufficient basis for warranting reconsideration of the
Court’s findings. But the Court carefully considered the undisputed evidence proffered to reach
its conclusion. And, the Court was not guided by erroneous legal principles and did not rest on
clearly erroneous factual findings. Further, Plaintiffs have not cleared the high hurdle of the
manifest injustice standard as to these claims.
6. INJUNCTIVE RELIEF
Finally, Plaintiffs argue that “the Court erred in refusing an injunction merely because it
was not explicitly addressed in the summary judgment motions.” Pls.’ Mem. at 8. Plaintiffs’
arguments are unpersuasive. Plaintiffs failed to request injunctive relief in their moving papers

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and failed to argue the necessary elements to support such relief. Plaintiffs cannot now argue
that the Court erred to give them relief they failed to request. Plaintiffs do not establish a legally
sound basis to alter or amend its judgment in this regard.
V.

CONCLUSION
For the aforementioned reasons, the Court will DENY Plaintiffs’ Motion. ECF No. 59.
Let the Clerk send a copy of this Memorandum Opinion to all counsel of record. An

appropriate Order shall issue.

_____________________/s/________________
James R. Spencer
Senior U. S. District Judge

ENTERED this

1st

day of September 2015.

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