United States District Court, N.D. Alabama, Eastern Division
MEMORANDUM OPINION AND ORDER
VIRGINIA EMERSON HOPKINS, District Judge.
I. Introduction and Procedural History
Plaintiff Kristopher Billingsley ("Mr. Billingsley") initiated this civil rights case on July 18, 2013, against Defendant Willie Orr ("Officer Orr"). (Doc. 1). Mr. Billingsley complains about how Officer Orr treated him during a law enforcement incident which occurred on or about June 1, 2012. (Doc. 1 at 3 ¶ 10). Mr. Billingsley's complaint, as originally filed, contained one federal count for deprivation of civil rights brought pursuant to 42 U.S.C. § 1983 and three other counts arising under Alabama law, all asserted against Officer Orr solely in his individual capacity.
Officer Orr filed a Motion for Summary Judgment (Doc. 23) on November 26, 2014, which sought dismissal of Counts One, Two, and Four of Mr. Billingsley's complaint. On January 13, 2015, the court granted in part and otherwise denied Officer Orr's Motion for Summary Judgment. (Doc. 26). More specifically, the court dismissed Counts One and Four on summary judgment, leaving Counts Two and Three for trial.
Now pending before the court is Mr. Billingsley's Motion To Amend, Alter or Vacate (Doc. 28) (the "Motion") filed on January 23, 2015. Within this Motion, Mr. Billingsley challenges the court's dismissal of the Fourth Amendment excessive force portion of Count One only. (Doc. 28 at 1-2). Officer Orr opposed the Motion on February 6, 2015. (Doc. 29).
A few days later, on February 10, 2015, Officer Orr filed a Brief in Support of Motion for Summary Judgment on Count Three of Complaint (Doc. 30) (the "Brief"). Mr. Billingsley responded to the Brief on February 24, 2015. (Doc. 31).
No other briefs or motions have been filed and Mr. Billingsley's Motion is under submission. For the reasons explained below, the Motion is DENIED. Further, to the extent that Officer Orr's Brief seeks to have this court enter summary judgment on Count Three of Mr. Billingsley's complaint, it is also DENIED.
II. Standards and Analysis
A. Mr. Billingsley's Motion To Reconsider
Although the court is well aware that it can modify any non-final summary judgment opinion and order, a party who asks a court to reconsider must meet the standard applicable to such a motion. Cf. Spellman v. Haley, No. 97-T-640-N, 2004 WL 866837, at *2 (M.D. Ala. Feb. 22, 2002) ("The district court, in its discretion, can modify or vacate non-final orders at any point before final judgment." (citing Fed.R.Civ.P. 54(b))); Summit Medical Center of Ala., Inc. v. Riley, 284 F.Supp.2d 1350, 1355 (M.D. Ala. 2003) (As a general rule, "[a] motion to reconsider is only available when a party presents the court with evidence of an intervening change in controlling law, the availability of new evidence, or the need to correct clear error or manifest injustice.").
The court's decision to dismiss excessive force as a purported independent Fourth Amendment claim is tied to the Eleventh Circuit's binding decisions in Williamson v. Mills, 65 F.3d 155 (11th Cir. 1995) and Jackson v. Sauls, 206 F.3d 1156 (11th Cir. 2000), and the absence of an independent claim for excessive force pled by Mr. Billingsley in his complaint. ( See Doc. 26 at 13 ("The Eleventh Circuit's decision in Williamson (as reinforced by Jackson ) means that Mr. Billingsley's excessive force claim is subsumed by his illegal seizure one.")). Citing to Gilmour v. Gates, McDonald and Co., 382 F.3d 1312, 1315 (11th Cir. 2004) and other binding cases, the court additionally explained on summary judgment that "the Eleventh Circuit has made it clear that it is procedurally inappropriate for a party to attempt to amend a pleading in any critical manner by way of briefing on summary judgment in the absence of that litigant also seeking leave to amend." (Doc. 26 at 13 n.5 (emphasis added)).
In his Motion, Mr. Billingsley does not contend that Williamson, Jackson, or Gilmour has been overruled by an intervening change in the law. Mr. Billingsley also does not premise his Motion upon any new evidence, clear error, or manifest injustice. Finally, Mr. Billingsley does not seek leave to amend his complaint to include a separate count for Fourth Amendment excessive force that is unconnected to any claim of illegal search and seizure.
Instead, Mr. Billingsley maintains in part:
This Court cites Williamson as the primary authority on this issue. See generally Williamson v. Mills, 65 F.3d 155, 155 (11th Cir. 1995). However, the present case in front of this Court is distinguishable from Williamson. In Williamson, the plaintiff "does not argue that the force used was more than that reasonably necessary to effect the arrest. He argues that there was no need for any force as the force was used to accomplish an unlawful arrest." Williamson, 65 F.3d at 158. In the case before this Court, Plaintiff does argue that the force used was more than that reasonably necessary. In fact, that is the only position that Plaintiff has taken throughout the entire litigation of this case. The Court in Williamson did subsume the plaintiff's excessive force claim in the plaintiff's false arrest claim, but only after determining that the defendant was not entitled to qualified immunity against the plaintiff's false arrest claim. Id. Therefore, there was no need for a discrete excessive force claim in Williamson because any use of force in an illegal stop or arrest is considered excessive and taken into account when ...