Opinion
Civil Action No. 00-2405-CM
May 3, 2001
MEMORANDUM AND ORDER
This matter is before the court on pro se plaintiff, Patrick Wesley MacCormack's motion (Doc. 97) to alter or amend judgment or for relief from the court's March 12, 2001 order (Doc. 86) granting the defendant City of Prairie Village's motion for summary judgment. Plaintiff sued defendant city under 42 U.S.C. § 1983 alleging violation of his rights pursuant to the United States Constitution and federal statutes. Finding no reason justifying relief, the court denies plaintiff's motion.
Facts
In the early morning hours of May 19, 2000, plaintiff was arrested from his residence without a warrant by officers of defendant's police department. After a preliminary hearing, all charges were dismissed by the Johnson County, Kansas, District Court for insufficient evidence. Thereafter, plaintiff filed this suit, and defendant made a motion for summary judgment alleging that plaintiff had failed to plead elements necessary to establish municipal liability under § 1983. The court found that:
Plaintiff has failed to present evidence to establish that the City of Prairie Village had a municipal policy or custom which caused the Constitutional or statutory violations alleged by plaintiff. Therefore, the court finds as a matter of law that plaintiff has failed to present evidence to establish the required elements of his claims against the defendant city.
MacCormack v. City of Prairie Village, Civ. A. No. 00-2405-CM, slip op. at 6 (D.Kan. March 12, 2001). The court granted defendant's motion for summary judgment and dismissed the action. Id.
Standard Pursuant to Rule 59(e)
A Rule 59(e) motion to alter or amend judgment is essentially a motion for reconsideration. Henry v. Office of Thrift Supervision, No. 92-4272, 1993 WL 545195, at *1 (D.Kan. Dec. 28, 1993) (citing Hilst v. Bowen, 874 F.2d 725, 726 (10th Cir. 1989), aff'd, 43 F.3d 507 (10th Cir. 1994)). Rule 59 allows a party to allege fundamental legal errors that require the court to reconsider an earlier decision. Federated Mut. Ins. Co. v. Botkin Grain Co., 856 F. Supp. 607, 609 (D.Kan. 1994). Reconsideration is proper when there has been a manifest error of law or fact, when new evidence has been discovered, or when there has been a change in the relevant law. All West Pet Supply Co. v. Hill's Pet Prods. Div., 847 F. Supp. 858, 860 (D.Kan. 1994).
A party cannot invoke Rule 59(e) to raise arguments or evidence that should have been raised in the first instance or to rehash arguments previously considered and rejected by the court. Id.; Botkin Grain, 856 F. Supp. at 609. Whether to grant or deny a motion to reconsider is committed to the district court's sound discretion. Henry, 1993 WL 545195, at *1 (citing Hancock v. City of Okla. City, 857 F.2d 1394, 1395 (10th Cir. 1988); Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 174 (5th Cir. 1990), cert. denied, 510 U.S. 859 (1993)).
Discussion
Plaintiff argues two reasons for reconsideration: (1) Defendant's motion for summary judgment did not comply with the requirements of D. Kan. Rules 56.1 or 7.1, and (2) there are genuine issues of material fact pursuant to Fed.R.Civ.P. 56(c) precluding the award of summary judgment. Plaintiff's motion, therefore, asserts manifest error of both law and fact.
Manifest Error of Law
Defendant filed its motion for summary judgment accompanied by: (a) Suggestions in Support of Defendant's Motion for Summary Judgment ("Suggestions"), and (b) Appendix to Defendant's Suggestions in Support of Motion for Summary Judgment (Appendix). Plaintiff argues that the local rules allow and require a motion for summary judgment to be accompanied by only one "brief or memorandum" and not an appendix or list of suggestions. Plaintiff's argument misapprehends the requirements of the Federal Rules of Civil Procedure concerning a summary judgment motion and the meaning of the term "brief or memorandum."
A "memorandum" is "[a] party's written statement of its legal arguments presented to the court, usu[ally] in the form of a brief." Black's Law Dictionary 998 (7th ed. 1999). "Brief" is defined as: "a document prepared by counsel as the basis for arguing a case, consisting of legal and factual arguments and the authorities in support of them." Id. at 186. Defendant's "Suggestions" fits within the definition of both a "brief" and a "memorandum." Defendant's "Suggestions" is a written statement of the factual and legal arguments and authorities of the defendant prepared by defendant's counsel and is presented to the court as defendant's basis for arguing its motion for summary judgment. Defendant's "Suggestions" is a "brief or memorandum" as required by local rules.
Pursuant to Rule 56, a party may make a motion for summary judgment "with or without affidavits." Fed.R.Civ.P. 56(a). In its "Appendix," defendant filed affidavits supporting its motion. With regard to such affidavits, the rule requires that they "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith." Id. 56(e). In this case, defendant chose to serve and file its papers and its affidavits, as an "Appendix," with, rather than attached to, its motion and memorandum. The court finds that defendant's motion for summary judgment was properly filed in an acceptable format in accordance with D. Kan. Rules 7.1-7.5, and 56.1.
Manifest Error of Fact
Plaintiff argues three disputed facts which preclude summary judgment in this case: (1) that an arrest warrant was never issued for the plaintiff in Kansas or Missouri, (2) whether the vehicle was reported stolen to the Kansas City, Missouri Police Department, and (3) whether plaintiff returned the vehicle at issue or extended the agreement with Budget Rent-A-Car beyond May 1, 2000. Plaintiff's arguments fail for several reasons. As to fact issues two and three, plaintiff failed to meet his burden to demonstrate an issue as to those facts on summary judgment, and may no longer do so. Gorelick v. Dep't of the Treasury, No. Civ. A. 97-2545-GTV, 1998 WL 472647, *1 (D.Kan. July 30, 1997). Rule 56(e) provides:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegation or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
Additionally, D. Kan. Rule 56.1 provides that, "All material facts set forth in the statement of the movant shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party." In his response to defendant's motion for summary judgment, plaintiff did not "set forth specific facts" showing a genuine issue of fact for trial. Plaintiff did not provide an affidavit or refer the court to any portion of the record to controvert the facts stated by the defendant. Plaintiff merely asserted that "[t]he plaintiff has documentation and evidence . . . to contradict the allegations made by the defendant. . . . Specifically, the police report filed by Budget Rent-A-Car is in dispute." MacCormack, slip op. at 5 (quoting (Pl.'s Mem. and Objection, at 1)). Moreover, the court made a search of the record and found no evidence to controvert defendant's facts. Therefore, the court found that defendant's facts were admitted by plaintiff. Id., slip op. at 4.
As to fact issue number one, plaintiff's assertion has already been accepted. Defendant did not assert that a warrant existed, and the court noted the lack of a warrant in its memorandum and order. Id., slip op. at 3 ("the police officers entered the residence without a warrant").
Finally, and most importantly, the facts alleged are not material to the issue of municipal liability. A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Summary judgment for defendant is proper in accordance with the court's prior order because plaintiff has not alleged facts sufficient to establish (1) a policy or custom of the City of Prairie Village which (2) caused the violations alleged by plaintiff. The facts alleged by plaintiff are not essential to the proper disposition of the issue of liability of the City of Prairie Village pursuant to § 1983 and are, therefore, not material.
Municipal Liability
In his motion, plaintiff, for the first time, addresses the issue of § 1983 municipal liability.
Excusable Neglect Pursuant to Rule 60(b)
Fed.R.Civ.P. 60(b) allows a court to relieve a party from a final judgment upon a showing of excusable neglect, but such relief is granted only in exceptional circumstances. Gorelick, 1998 WL 472647, at *2 (citing Van Skiver v. United States, 952 F.2d 1241, 1243-44 n. 4 (10th Cir. 1992)). Plaintiff asserts that "details of municipal liability [are] premature" because the original complaint contained a general allegation of municipal liability pursuant to § 1983 and because "the court's own scheduling order indicated that discovery was the issue to be pursued at this time." (Pl.'s Mot. to Reconsider at 5). The court construes this argument as an assertion that plaintiff's failure to address the issue of municipal liability at summary judgment constitutes excusable neglect.
Pursuant to the rules of civil procedure, the court shall enter its scheduling order to limit the time in which to file motions and to complete discovery. Fed.R.Civ.P. 16(b). Moreover, the rule provides that the court may take appropriate action with respect to "the appropriateness and timing of summary adjudication under Rule 56." Id. 16(c)(5). The court's scheduling order (Doc. 35) provides that discovery shall be completed by March 30, 2001 and that dispositive motions shall be filed by May 4, 2001. The scheduling order does not preclude dispositive motions during discovery. Plaintiff did not seek such an order, and did not argue that discovery matters prevented him from properly addressing defendant's motion. Plaintiff does not explain, and the court sees no reason, why the scheduling order might preclude either plaintiff's responding to defendant's motion or the court's deciding defendant's motion. Plaintiff does not argue that he had insufficient discovery or insufficient information to oppose defendant's motion. Plaintiff has failed to establish either excusable neglect or exceptional circumstances to justify relief from the court's judgment. Nonetheless, the court addresses the merits of plaintiff's arguments.
Analysis
Plaintiff argues that the allegations of his complaint demonstrate the existence of municipal policies and customs which directly caused the violations of rights alleged. Plaintiff bases his argument upon certain definitions of "policy" and "custom," upon certain statements of the police officers who arrested plaintiff, and upon defendant's "vigorous defense of these actions in a United States District Court." (Pl.'s Mot. to Reconsider at 10, 7-10). Plaintiff claims that the fact the police officers did not tell plaintiff that he was to be extradited, and the fact that the officers "knowingly conducted a search and seizure of the plaintiff and the plaintiff's residence without a search warrant," demonstrate a policy or custom of the defendant (1) to arrest suspects without warrants and without advising of the possibility of extradition, and (2) to conduct searches and seizures without warrants. (Id. at 8).
Plaintiff claims the city's vigorous defense of the officers' actions "is implicit evidence [that the] arrest procedure [at issue] is a common custom and practice for the City of Prairie Village." (Id. at 10). Plaintiff's conclusion does not follow from his premise. Plaintiff did not sue the officers, he sued the city. Therefore, the city is not defending the officers' actions, it is defending its own actions, even though in so doing it may also defend the actions taken by the officers. If the city has policies and customs as alleged by plaintiff, one might expect that the city would vigorously defend this action in order to protect its policies. However, one might also expect a vigorous defense if the city did not have such policies and customs, but did not want to acquiesce in false allegations. Therefore, the mere fact of a vigorous defense is no indication of the existence of such policies or customs.
As the court's prior order noted, the complaint contains no allegations of a municipal policy or custom or of a causal connection between such policy or custom and the deprivations alleged by the plaintiff. Further, plaintiff did not address the issue of municipal liability in its response to defendant's motion. However, plaintiff now attempts to argue facts which show a policy or custom which caused the alleged deprivations. Such an attempt at this time is untimely as a matter of law. Gorelick, 1998 WL 472647 at *1. The evidence upon which plaintiff's argument is based is not new, it was available when plaintiff responded to defendant's motion and was, in fact, included in defendant's "Appendix." Plaintiff could and should have presented his arguments in response to defendant's motion. Plaintiff failed to meet his burden, and will not be given a second chance to make up the deficiency.
Moreover, plaintiff's evidence is insufficient to permit inference of a municipal policy or custom. Plaintiff acknowledges that "policy" is "a definite course or method of action . . . to guide and determine present and future decisions," and that "custom" is a "` repeated practice' . . . synonymous with habit." (Pl.'s Mot. to Reconsider at 7). (emphasis added). Other than the incident on May 19, 2000, plaintiff points to no evidence which might show improper arrests or improper searches and seizures conducted by police officers employed by defendant. Plaintiff's assertions might, at most, establish a single incident of constitutional or statutory deprivations. Plaintiff presents no evidence from which a jury could infer a policy or custom-a "definite course of action to determine present and future decisions" or "a repeated practice." One incident, at least in these circumstances, cannot establish a municipal policy or custom. Failing to show facts from which, viewed in the light most favorable to plaintiff, the court might infer a municipal policy or custom, the plaintiff has failed to establish a required element of his claims against the city.
Summary
The court finds no manifest error of law or fact in its prior decision. Plaintiff has not shown excusable neglect for its failure to address the issue of municipal liability in response to defendant's motion for summary judgment. Plaintiff may not now assert facts which were known to plaintiff but not argued in his response to defendant's motion. Moreover, even if the court accepts the facts asserted, such facts are insufficient to establish a municipal policy or custom, and plaintiff cannot establish a required element of his claims against the city.
IT IS THEREFORE ORDERED that plaintiff's motion (Doc. 97) to stay and reconsider the court's order (Doc. 86) granting defendant's summary judgment motion is denied