Underwood v. City of Bessemer

          MEMORANDUM OPINION ^[1]

          JOHN H. ENGLAND, III UNITED STATES MAGISTRATE JUDGE

         On September 28, 2018, the undersigned granted Defendants'^[2] motion for summary judgment, (doc. 43), and dismissed this 42 U.S.C. § 1983 action with prejudice. (Docs. 66 & 67). Plaintiff Marcus Underwood (“Underwood” or “Plaintiff”) has moved to alter or amend that judgment pursuant to Fed.R.Civ.P. 59(e). (Doc. 68). Defendants oppose that motion. (Doc. 70). Underwood has also moved for leave to file supplemental authority in support of his Rule 59 motion, (doc. 71), and Defendants have submitted a response to that motion, (doc. 72). Underwood's motion for leave is GRANTED to the extent that the undersigned will consider the arguments made in the motion and the attached authority, but, for the reasons stated more fully below, Underwood's Rule 59(e) motion is DENIED. However, a new memorandum opinion will be substituted for the previous opinion

         I. Legal Standard

         Rule 59(e) permits a party to move to alter or amend a judgment. Fed.R.Civ.P. 59(e). “Reconsidering the merits of a judgment, absent a manifest error of law or fact, is not the purpose of Rule 59.” Jacobs v. Tempur-Pedic Int'l, Inc., 626 F.3d 1327, 1344 (11th Cir. 2010). To that end, “the only grounds for granting a Rule 59 motion are newly-discovered evidence or manifest errors of law or fact.” Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (quoting In re Kellogg, 197 F.3d 1116, 1119 (11th Cir.1999)) (internal alterations omitted). For the purposes of the Rule, a manifest error of law is “the wholesale disregard, misapplication, or failure to recognize controlling precedent.” Benton v. Burke, No. CV-11-S-493-NE, 2012 WL 1746122, at *1 (N.D. Ala. May 16, 2012) (quoting Oto v. Metropolitan Life Insurance Co., 224 F.3d 601, 606 (7th Cir. 2000)). “A Rule 59(e) motion cannot be used to relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment.” Id. (quoting Michael Linet, Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir.2005)) (internal alterations omitted).

         IT. Analysis

         Underwood's Rule 59(e) motion challenges the undersigned's conclusion that Officer Partridge and Officer Asarisi are entitled to qualified immunity. (See doc. 68).

         Although this is not actually the error Underwood states entitles him to relief under Rule 59(e), the undersigned starts with Underwood's contention the court failed to construe the evidence favorably to him and, instead, resolved factual disputes in Defendants' favor. (Doc. 69 at 2-3). For the most part, the undersigned does not need to delve into this issue because the memorandum opinion accounts for the reasons why Underwood's assertions are misplaced. The only specific piece of evidence Underwood identifies that the memorandum opinion did not account for was an excerpt from the deposition of Elizabeth “Lee” Harrington (“Harrington”). The undersigned noted in the memorandum opinion: “Underwood states Harrington testified Underwood's car did not accelerate until after the officers began shooting at it. (Doc. 58 at 13, ¶ 13-14). None of the testimony Underwood references supports this assertion.” (Doc. 66 at 12 n.12). The memorandum opinion then identifies the portions of Harrington's testimony that Underwood cited. (See id.) (citing doc. 58 at 13, ¶¶ 13-14 (which, in turn, cites doc. 37-3 at 60:1-23, 62:14-23)). Underwood's instant motion cites a different portion of Harrington's testimony to rebut the memorandum opinion's alleged conclusion that “none of Harrington's testimony supports an assertion that Underwood's car did not accelerate until after the officers began shooting at it.” (Doc. 68 at 3-4, n.2). In that portion, the following exchange occurred:

Q. And that's because you first observed the car when you stepped outside?

A. When I was outside, I observed the car going around the policeman. I don't know where it came from. I didn't see anything.

Q. And it was going by the tall, thin police officer?

A. Correct.

Q. And do you know where the other officer was at that time?

A. No.

Q. Did you observe the car begin to move more quickly as it went past the tall, thin officer, before the ...