1 Deputy Greene has requested oral argument. (Motion, ¶ 10.) After careful review of

the materials submitted, and all parts of the court file deemed relevant, the Court is of the opinion that

oral argument would not be of material assistance in resolving the pending motion. As such, the request

for oral argument is denied. See Local Rule 7.3 (providing that “the court may in its discretion rule on

any motion without oral argument”).

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

GERALD ANDERSON, )

 )

Plaintiff, )

 )

v. ) CIVIL NO. 05-0393-WS-M

 )

JOHN GREENE, )

 )

Defendant. )

ORDER

This matter is before the Court on defendant John Greene’s Motion to Alter, Amend or Vacate

(doc. 11). The Court having reviewed the Motion and accompanying materials, the Motion is now ripe

for disposition.1

I. Background.

On July 6, 2005, defendants, Conecuh County Deputy Sheriff John Greene and Sheriff Tracey

Hawsey, removed this action from the Circuit Court of Monroe County, Alabama, where it had been

pending for nearly a year. Removal was predicated on Circuit Court Judge Sam Welch’s ruling of June

8, 2005, authorizing plaintiff Gerald Anderson to amend his Complaint to plead causes of action under

42 U.S.C. §§ 1981(a) and 1983.

Concurrently with their Notice of Removal, defendants filed a Motion to Dismiss (doc. 2) in

which they contended that plaintiff’s claims were barred on various grounds including, inter alia, res

judicata, failure to state a claim against Sheriff Hawsey upon which relief can be granted, qualified

immunity as to the § 1983 claims and sovereign immunity as to the state law claims. Despite being

given an opportunity to do so, plaintiff filed no response to the Motion to Dismiss.

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2 The State Court Order apparently was not filed in state court until July 8, 2005, even

though it was signed by Judge Welch a full month earlier. For purposes of this Order, the Court will

accept Deputy Greene’s representation that he lacked access to the State Court Order until July 8,

2005.

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On August 16, 2005, the undersigned entered an Order (doc. 9) granting the Motion to

Dismiss in part, and denying it in part. In particular, the Court reasoned that the state court judge’s

decision to grant summary judgment in favor of Deputy Greene could only have been intended as a

dismissal without prejudice, inasmuch as immediately after doing so the state court judge authorized

Anderson to amend his complaint to bring new and additional claims against Deputy Greene. On that

basis, the Court concluded, res judicata was inapplicable. Likewise, the Court found that Deputy

Greene was not entitled to dismissal of the § 1983 claims against him on qualified immunity grounds,

inasmuch as he had failed to meet his burden of demonstrating that he was acting within the scope of his

discretionary authority at the time of the alleged acts. The Court expressly preserved Deputy Greene’s

right to reassert the qualified immunity defense in a Rule 56 motion at an appropriate time.

Except as stated, the August 16 Order dismissed all claims against all parties. Thus, the sole

remaining claim in this action is plaintiff’s Count Five § 1983 claim alleging violation of Anderson’s

Fourteenth Amendment rights. Given the ambiguities in the Amended Complaint, the referenced Order

required Anderson to submit a Second Amended Complaint fleshing out the legal and factual basis of

his § 1983 cause of action against Deputy Greene on or before September 9, 2005. In lieu of awaiting

the amended pleading and mounting a fresh attack against it if appropriate, Deputy Greene filed a

motion to reconsider the August 16 Order, based on the written order entered by Judge Welch on June

8, 2005 (the “State Court Order”).2 According to Deputy Greene, the State Court Order proves that

res judicata applies here because it granted a final judgment in his favor. Defendant also argues that the

State Court Order establishes conclusively that he was acting within the scope of his discretionary

authority at the time of the events in question, thereby barring relitigation of that issue pursuant to

principles of collateral estoppel.

II. Analysis.

A. Reconsideration is Not Appropriate Here.

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3 Likewise, motions to reconsider are not a platform to relitigate arguments previously

considered and rejected. See Lazo v. Washington Mutual Bank, 2001 WL 577029, *1 (9th Cir.

May 29, 2001) (motion to reconsider is properly denied where movant merely reiterates meritless

arguments); American Marietta Corp. v. Essroc Cement Corp., 2003 WL 463493, *3 (6th Cir.

Feb. 19, 2003) (similar).

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In the interests of finality and conservation of scarce judicial resources, reconsideration of an

order is an extraordinary remedy and is employed sparingly. See United States v. Bailey, 288 F.

Supp.2d 1261, 1267 (M.D. Fla. 2003); Pennsylvania Ins. Guar. Ass'n v. Trabosh, 812 F. Supp.

522, 524 (E.D. Pa. 1992); Spellman v. Haley, 2004 WL 866837, *2 (M.D. Ala. Feb. 22, 2002)

(“litigants should not use motions to reconsider as a knee-jerk reaction to an adverse ruling”). Indeed,

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.” Summit Medical Center of Alabama, Inc. v. Riley, 284 F.

Supp.2d 1350, 1355 (M.D. Ala. 2003); Caisse Nationale de Credit Agricole v. CBI Industries,

Inc., 90 F.3d 1264, 1269 (7th Cir. 1996) (“Motions for reconsideration serve a limited function: to

correct manifest errors of law or fact or to present newly discovered evidence.”).

It is well established in this circuit that “[a]dditional facts and arguments that should have been

raised in the first instance are not appropriate grounds for a motion for reconsideration.” Rossi v. Troy

State University, 330 F. Supp.2d 1240, 1249 (M.D. Ala. 2002) (denying motion to reconsider where

plaintiff failed to submit evidence in question prior to entry of order and failed to show good cause why

he could not have done so).3 Furthermore, the Eleventh Circuit has declared that “a motion to

reconsider should not be used by the parties to set forth new theories of law.” Mays v. U.S. Postal

Service, 122 F.3d 43, 46 (11th Cir. 1997); see also Russell Petroleum Corp. v. Environ Products,

Inc., 333 F. Supp.2d 1228, 1234 (M.D. Ala. 2004) (relying on Mays to deny motion to reconsider

where movant advanced several new arguments); Coppage v. U.S. Postal Service, 129 F. Supp.2d

1378, 1379-81 (M.D. Ga. 2001) (similar).

Defendant Greene insists that reconsideration of the August 16 Order is warranted based on

the contents of the State Court Order. He explains that this order is “previously unavailable” and “new

Case 1:05-cv-00393-WS-M Document 15 Filed 09/01/05 Page 3 of 7
4

In addition to the State Court Order, Greene’s Motion also relies the Affidavit of John

D. Greene dated September 20, 2004, and the Affidavit of Tyrone Boykins dated September 20,

2004. (Defendant’s Brief, at Exh. B & C.) Both affidavits were apparently procured by defense

counsel in connection with the state court proceedings last fall. Under no possible rationale could these

items be characterized as “new evidence”; therefore, they do not provide a viable basis for

reconsideration.

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evidence” because it was filed on July 8, 2005, two days after Deputy Greene filed his Motion to

Dismiss. The Court cannot agree. Irrespective of whether defense counsel had the State Court Order

in hand when he filed the Motion to Dismiss, it is uncontroverted that he had actual possession of that

document nearly six weeks before this Court ruled on the Motion to Dismiss. During that time, Deputy

Greene made no effort to supplement the record to include the State Court Order which he now

maintains is of vital importance to his Motion to Dismiss. Defense counsel is certainly correct that “[t]he

Court’s findings were made without the benefit of having the final Order from the state court”

(Defendant’s Brief (doc. 12), at 6), but that situation was entirely the result of Deputy Greene’s

inexplicable failure to put said order before this Court back in July. In the absence of any explanation

why defendant did not bring the State Court Order to the undersigned’s attention despite having actual

knowledge of it for more than a month before entry of the August 16 Order, the Court cannot embrace

defense counsel’s characterization of the State Court Order as “new evidence.” Deputy Greene could

and should have submitted that document well in advance of the August 16 Order. He did not. As

such, the State Court Order is not “new evidence” and is not a valid basis for reconsideration.4

B. Defendant Greene Has Presented No Viable Grounds for Rule 59 Relief.

Even if the Court were to deem the State Court Order “new evidence” and grant Deputy

Greene’s plea for reconsideration on that basis, he would not be entitled to relief from the August 16

Order on either the res judicata or the qualified immunity issues.

Defendant’s first contention is that the State Court Order establishes his entitlement to res

judicata as to the § 1983 claim. In so arguing, defendant apparently relies on Judge Welch’s holding

that “the Plaintiff’s claims against John Greene are due to be and are, hereby, dismissed” and “the

Court therefore expressly directs the entry of a final judgment in the Defendant’s favor.” (State Court

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5 Significantly, nowhere in the State Court Order does Judge Welch indicate that

plaintiff’s claims against Deputy Greene are dismissed with prejudice. Absent such a designation, the

Court cannot construe Judge Welch’s actions as a dismissal with prejudice, as is required to trigger res

judicata. See generally USA Petroleum Corp. v. Hines, 770 So.2d 589, 591 (Ala. 1999) (where

trial court’s order dismissing claims against defendant “is silent as to whether the dismissal was with

prejudice ..., we must presume that the dismissal was without prejudice and that it would have no res

judicata effect”). Moreover, the State Court Order makes no mention of Judge Welch’s granting of the

motion to amend complaint, which he did on the same date, mere moments after granting the motion for

summary judgment. Because of that omission, the State Court Order in no way casts doubt on the

validity of this Court’s reconciliation of Judge Welch’s seemingly disparate rulings of June 8, 2005. 

Finally, although defendant may disagree with this Court’s interpretation of the state court’s admittedly

paradoxical decisions, he has offered no other reasonable means of harmonizing them. To the extent

that he does not understand those rulings, defendant is in a dilemma of his own creation because he

chose to remove this action to federal court rather than giving Judge Welch an opportunity to explain

and reconcile his decisions by keeping the action in Monroe County Circuit Court.

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Order, at 5.) According to defendant, “[a]s the July 8, 2005 Order grants Final Judgment on the

merits, res judicata bars the Plaintiff’s relitigation of his claims in this Court.” (Defendant’s Brief, at 3.) 

The fundamental defect with defendant’s reasoning is that it fails to harmonize Judge Welch’s written

order of June 8, 2005 with his act of allowing Anderson to amend his complaint to assert new and

different claims against Deputy Greene immediately after entering summary judgment in Deputy

Greene’s favor. As the August 16 Order explains in detail, the only plausible construction of Judge

Welch’s two June 8 rulings is that he did not intend the judgment to operate as a final dismissal with

prejudice in Deputy Greene’s favor, but that he simply granted summary judgment to Deputy Greene

without prejudice to Anderson’s right to assert additional claims, while simultaneously authorizing

Anderson to pursue such new claims against Deputy Greene in an amended complaint. (See August 16

Order, at 6.) Nothing in Judge Welch’s written order undermines this reasoning or suggests any other

rational interpretation of his two contemporaneous determinations.5 Accordingly, even if the Court

were to grant defendant’s request for reconsideration, the State Court Order in no way compels or

encourages a different result to the res judicata analysis set forth in the August 16 Order.

Defendant’s second argument is that the State Court Order “contains findings of fact that

demonstrate conclusively that Deputy Greene was acting within his discretionary authority” during the

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6 Deputy Greene’s motion to reconsider makes much of certain findings of fact made by

Judge Welch in connection with his determination that defendant was acting within the course and

scope of his duties for sovereign immunity purposes. (Defendant’s Brief, at 5-6.) These findings trace

the circumstances under which Deputy Greene traveled to Anderson’s home. Judge Welch found that

Deputy Greene was employed as Chief Investigator of the Conecuh County Sheriff’s Department as of

September 2003, that Anderson’s brother informed Deputy Greene that Anderson had purchased from

a person named “Possum” certain items stolen in Conecuh County, and that Deputy Greene, while on

duty, traveled to Anderson’s home to investigate. (State Court Order, at 1-2.) Such findings may be

sufficient to establish that Deputy Greene was “pursuing a job-related goal,” but they say nothing about

whether he did so “through means within his power to utilize.” Holloman, 370 F.3d at 1264. The

absence of factual findings by Judge Welch relating to the second Holloman factor precludes the Court

from construing the State Court Order as mandating that Deputy Greene was acting within his

discretionary authority, or from finding that principles of collateral estoppel foreclose any debate over

Deputy Greene’s entitlement to the qualified immunity defense as to plaintiff’s § 1983 cause of action.

-6-

events at issue, and that collateral estoppel therefore bars relitigation of that matter. (Defendant’s

Brief, at 5.) But Judge Welch was not called upon to make any determinations as to whether Deputy

Greene was acting within his discretionary authority when the allegedly wrongful acts occurred. Judge

Welch could not have made any such rulings, because he was not confronted with Anderson’s § 1983

claims or defendant’s concomitant qualified immunity defense. Instead, the question before Judge

Welch was whether Deputy Greene “was in the course and scope of his duties” for purposes of his

sovereign immunity defense to state law claims. (State Court Order, at 4.) That Judge Welch

answered that question in the affirmative is not necessarily dispositive of the “discretionary function” test

for qualified immunity eligibility because the two legal standards diverge. Compare Ex parte

Haralson, 871 So.2d 802, 806 (Ala. 2003) (explaining that state immunity typically turns on whether

deputy “was acting within the line and scope of his duties at the time of the accident”) where Holloman

ex rel. Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir. 2004) (discretionary function test

requires defendant to show that government official was “(a) pursuing a legitimate job-related function

(that is, pursuing a job-related goal), (b) through means that were within his power to utilize”). 

Therefore, the state court’s findings on state sovereign immunity do not automatically entitle Deputy

Greene to qualified immunity on the newly asserted federal claims.6

Even if the Court found that defendant was entitled to reconsideration and that the State Court

Case 1:05-cv-00393-WS-M Document 15 Filed 09/01/05 Page 6 of 7
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Order was conclusive on the question of whether Deputy Greene was performing a “discretionary

function,” the ultimate disposition of the qualified immunity analysis remains unknown and unknowable

at this time. The Eleventh Circuit has counseled that once a government official establishes that he was

engaged in a discretionary function, the burden shifts to the plaintiff to show that the defendant

committed a constitutional violation and that the constitutional right was clearly established at the time of

the officer’s actions. See, e.g., Crosby v. Monroe County, 394 F.3d 1328, 1332 (11th Cir. 2004). 

Pursuant to the August 16 Order, plaintiff has been ordered to file a Second Amended Complaint

clarifying the factual and legal basis of his § 1983 claim against Deputy Greene. Until that amended

pleading is filed, this Court cannot assess Anderson’s ability to satisfy his burden. Accordingly, in light

of the imminent filing of the Second Amended Complaint, it would be manifestly improper to dismiss

Anderson’s § 1983 claim against Greene on qualified immunity grounds, because the merits of such

defense cannot possibly be evaluated in advance of the filing of such amended pleading.

III. Conclusion.

In sum, defendant’s Motion to Alter, Amend or Vacate (doc. 11) misapplies applicable

precedents, overstates the significance of the State Court Order, and overlooks the procedural posture

of this action in the wake of the August 16 Order. The Motion is denied. Nothing herein alters or

affects plaintiff’s obligations under the August 16 Order to submit a Second Amended Complaint on or

before September 9, 2005.

DONE and ORDERED this 26th day of August, 2005.

s/ WILLIAM H. STEELE 

UNITED STATES DISTRICT JUDGE

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