United States District Court, S.D. Alabama, Southern Division
V. S. Granade Senior United States District Judge.
action is before the Court on two Report and Recommendations
(“R&R”) wherein the Magistrate Judge
separately recommends that the City of Mobile's Motion to
Strike be Granted in Part and Denied in Part (Doc. 80) and
recommends that Defendant, Sheriff Sam Cochran's
(“Cochran”), Motion to Dismiss be granted. (Doc.
has filed a document entitled “Plaintiff's Motion
for Reconsideration and Incorporated Memorandum” (Doc.
86), to the R&R dated July 5, 2017 (Doc. 33), which was
adopted by this Court on July 28, 2017 (Doc. 38) in which she
“moves the Court to reconsider its rulings dismissing
her state and federal law claims against defendant Cochran in
his official and individual capacities.” (Doc. 86).
Therein, Plaintiff asserts that this Court erred in adopting,
not the R&R currently before this Court, but the initial
R&R of the Magistrate Judge which dismissed several other
of Plaintiff's claim on the grounds that Cochran was
immune from suit based on both sovereign and Eleventh
Amendment Immunity. (Doc. 86). Plaintiff also asserts that
the current R&R (Doc. 81) should not be adopted. This
Court construes Plaintiff's motion as an objection to the
pending R&R (Doc. 81) which prior to this Order, has not
been adopted, and also as a motion to reconsider its adoption
of the Magistrate Judge's previous R&R (Doc. 33).
Plaintiff does not object to the Magistrate's R&R
relating to the City of Mobile's Motion to Strike (Doc.
relevant background is as follows:
April 20, 2015, Plaintiff was pulled over for a traffic
violation by officers from the City of Mobile Police
Department. Officers determined that there was an active
warrant for Plaintiff's arrest which resulted in her
being arrested, searched, and transported to Mobile County
Metro Jail (“Metro”). Plaintiff filed a 42 U.S.C.
§ 1983 action against a number of Defendants, including
members of the City of Mobile Police Department, the City of
Mobile, Alabama, Mobile County Sheriff Sam Cochran, and the
Alabama Safety Institute due to her arrest and search. (Doc.
April 12, 2017, the City of Mobile and Sam Cochran filed
Motions to Dismiss. (Docs. 15, 16). On July 5, 2017, the
Magistrate Judge entered a R&R recommending dismissal of
Plaintiff's state law claims and certain of her federal
law claims against Cochran on the grounds of sovereign
immunity and/or Eleventh Amendment Immunity, but permitted
Plaintiff the opportunity to amend her Complaint as to the
Counts X and XI against Cochran in order to properly state a
claim against him in his individual capacity. (Doc. 33).
Plaintiff did not object to the R&R and on July 28, 2017,
the undersigned adopted the R&R and granted the City of
Mobile's and Cochran's motions to dismiss in part.
(Doc. 38). Plaintiff filed an Amended Complaint as permitted
on August 11, 2017. (Doc. 40). On August 21, 2017, Cochran
filed a Motion to Dismiss Plaintiff's Amended Complaint.
(Doc. 42). On January 23, 2018, the Magistrate Judge entered
an R&R recommending dismissal as to Counts X and XI
against Cochran based on qualified immunity. (Doc. 81).
Plaintiff did not object within the allowed fourteen days,
but on February 22, 2018, Plaintiff filed the instant Motion
for Reconsideration and Incorporated Memorandum asserting
that the Court should reconsider its adoption of the initial
R&R (Doc. 33) and not adopt the most recent R&R (Doc.
81). (Doc. 86, generally).On March 1, 2018, Cochran filed a Reply
to Plaintiff's Motion for Reconsideration. (Doc. 87).
Plaintiff's Motion to Reconsider
motion states that she is seeking reconsideration as follows:
As to the former and latter reports [R&R's],
plaintiff seeks reconsideration on a narrow issue relative to
the entity on whose behalf Sheriff Cochran was really acting
in connection with the conduct plaintiff alleged in the
amended complaint. The former reports assumed the Sheriff
Cochran was acting on behalf of the State of Alabama and was
therefore immune from suit on both sovereign and Eleventh
[A]mendment immunity. The latter report, if the narrow issue
for which plaintiff seeks reconsideration of the former
report is taken into consideration, the error in considering
qualified immunity defense under Rule 12(b)(6) becomes more
(Doc. 86 at 2). Plaintiff does not assert that the
Court's reasoning for initially dismissing Cochran was
incorrect, but only asserts now that the Court's
“conclusion was made without the knowledge of the
contractual agreement between the sheriff, City and County
[the “Agreement”] against the backdrop of
Municipal Code § 46-33.” (Id.) In that
respect, Plaintiff asserts that the Agreement and §
46-33 served to alter Cochran's status from an “arm
of the state” to an agent of the city, thus barring his
defense of Eleventh Amendment Immunity. (Id. at 3).
Similarly, Plaintiff argues that the Agreement and §
46-33 constituted a waiver of sovereign immunity.
(Id. at 3-4).
decision to grant or deny a motion to reconsider is left to
the discretion of the trial court. Chapman v. AI
Transport, 229 F.3d 1012, 1023-24 (11th Cir. 2000) (en
banc). “In the interest of finality and conservation of
scarce judicial resources, reconsideration of an order is an
extraordinary remedy and is employed sparingly.”
Gougler v. Sirius Products, Inc., 370 F.Supp.2d
1185, 1189 (S.D. Ala. 2005) (citation omitted). Generally,
“[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.” Summit Medical Center of Alabama, Inc.
v. Riley, 284 F.Supp.2d 1350, 1355 (M.D. Ala. 2003).
Also, “[m]otions for reconsideration should not be used
to raise legal arguments which could and should have been
made before the judgement was issued.” Sanderlin v.
Seminole Tribe of Florida, 243 F.3d 1282, 1292 (11th
Cir. 2001) (citations omitted). Plaintiff has not presented
evidence of an intervening change in controlling law or the
availability of new evidence. Therefore, this Court construes
Plaintiff's motion to assert that reconsideration is
necessary to correct clear error or manifest injustice.
request for this Court to reconsider its previous findings is
not well taken. Plaintiff did not provide this Court with the
Agreement to which she refers. Nevertheless, the ordinance on
which Plaintiff relies, which is only quoted in
Plaintiff's Response to the City of Mobile's pending
Motion for Summary Judgment (Doc. 83) and not her Motion for
Reconsideration, does little to bolster Plaintiff's
position. Municipal Code Section 46-33 states as follows:
“The jail designated for use by the city and the
municipal prisoners when therein are under the control and
direction of the chief of police, who is vested with the
power to prescribe and, in person or by police officers,
enforce rules for their conduct and discipline but rules and
regulations established by him may be changed by the mayor or
city council at any time." (Doc. 83 at 8). Plaintiff
asserts the above language caused Cochran to become an agent
of the City of Mobile because the sheriff is required by
state law to operate the jail and the ordinance dictates that
the chief of police maintain control over municipal
prisoners. Plaintiff has not provided any legal support that
a city ordinance can re-classify the status of a sheriff as
set forth by state law or that, in circumstances such as
those present in this action, the sheriff is acting as an
agent of the city, not the state. Further, the ordinance,
while describing that the chief of police is to have control
over the jail designated for use by the city, does not go so
far as to clearly establish that the sheriff, somehow becomes
an agent of the city for purposes of immunity. As a result,
Plaintiff has not shown that the Court's previous
adoption of the Magistrate's R&R (Doc. 33) was in
clear error or resulted in a manifest injustice. Accordingly,
Plaintiff's Motion for Reconsideration (Doc. 86) is due
to be Denied.
Objection to ...