IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

MICHAEL DONALD ROGERS

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Plaintiff,

vs. CIVIL ACTION NO. 14-586-CG-M

CITY OF SELMA, et al.,

Defendants.

ORDER

This matter is before the Court on the motion to alter or amend 

judgment filed by Plaintiff Michael Donald Rogers (Doc. 47) and opposition 

thereto filed by Defendants City of Selma, Police Chief William Riley, Officer 

Curtis Muhannad, and Investigator Ray Blanks (collectively, “Defendants”) 

(Doc. 50). For the reasons stated below, the motion to alter or amend the 

judgment is due to be denied.

DISCUSSION

Plaintiff brought suit against Defendants based on alleged violations of 

42 U.S.C. § 1983 and various laws of the State of Alabama. (Doc. 1). 

Defendants’ motion for summary judgment on all claims was granted by the 

Court on April 8, 2016. (Doc. 41). Plaintiff now asks the Court to alter or 

amend its earlier judgment based on four arguments.

Pursuant to the Federal Rules of Civil Procedure, Rule 59(e), a “motion 

to alter or amend a judgment must be filed no later than 28 days after the 

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entry of the judgment.”1 The decision whether to alter or amend a judgment 

is “committed to the sound discretion of the district judge.” Mincey v. Head, 

206 F.3d 1106, 1137 (11th Cir. 2000) (citation omitted). Reconsideration is 

characterized as an “extraordinary” remedy that the court should employ 

“sparingly.” Gougler v. Sirius Products, Inc., 370 F. Supp. 2d 1185, 1189 

(S.D. Ala. 2005) (citations omitted). Generally courts have recognized three 

grounds that justify reconsidering an order: (1) an intervening change in 

controlling law; (2) the availability of new evidence; and (3) the need to 

correct clear error or manifest injustice. Summit Medical Center of Ala., Inc. 

v. Riley, 284 F. Supp. 2d 1350, 1355 (M.D. Ala. 2003). In this case, Plaintiff 

timely filed his Motion to Alter or Amend Judgment but does not argue 

intervening change in controlling law or new evidence. Therefore, the Court 

reviews its prior decision for clear error or manifest injustice.

First, Plaintiff argues that “[t]he inadvertent failure to properly 

notarize the affidavits [offered in opposition to summary judgment] is 

excusable neglect” and his corrected versions should be reconsidered. (Doc. 

47, p. 1). Plaintiff contends that Rule 60(b)(1) calls for relief and 

reconsideration. Defendants aver that this argument is meritless because 

1 In his motion, Plaintiff makes no mention to the Federal Rule of Civil 

Procedure he generally relies upon for relief, much less outline the 

appropriate legal standard. He does briefly mention Rule 60(b)(1) but only in 

context of the affidavits provided in opposition to summary judgment. But 

Plaintiff does title his motion a “Motion to Alter or Amend Judgment” and 

request that the Court “review and [ ] alter or amend its judgment ....” (Doc. 

47, p. 1). Thus, the Court construes this language to mean that Plaintiff 

seeks relief under Rule 59(e).

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Plaintiffs failed to show “good cause” for the errors in drafting the selfdescribed “affidavits”. (Doc. 50, p. 2). The Court agrees. 

“On motion and just terms, the court may relieve a party ... from a 

final judgment” when the judgment results from excusable neglect. Fed. R. 

Civ. P. 60(b)(1); see also S.E.C. v. Simmons, 241 Fed. App’x 660, 663 (11th 

Cir. 2007) (finding “claims of attorney error must be made under the more 

specific Rule 60(b)(1)”). The Eleventh Circuit has “demonstrated its wariness 

of grants of Rule 60(b)(1) relief for excusable neglect based on claims of 

attorney error.” Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1115 (11th Cir. 

1993); see also Revere v. McHugh, 362 Fed. App’x 993, 999 (11th Cir. 2010) 

(applying Cavaliere); Simmons, 241 Fed. App’x at 663 (same). As 

unfortunate as it may be, attorney “oversight” does not justify Rule 60(b) 

relief in the absence of good cause even though it may “penalize innocent 

clients for the forgetfulness of their attorney.” Solaroll Shade and Shutter 

Corp. v. Bio-Energy Sys., Inc., 803 F.2d 1130, 1132 (11th Cir. 1986).

Here, Plaintiff does not show good cause for deficiencies in the selfdescribed “affidavits”. Instead, Attorney Toure provides another affidavit 

averring that she did not instruct the notary to insert the appropriate 

language and has “no experience in this type of litigation.” (Doc. 47-1, p.1) 

Both arguments are unavailing. It strains reason that affidavits and 

declarations require a requisite level of experience in any one particular type 

of litigation to appropriately oppose summary judgment. Moreover, the 

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exclusion of Plaintiff’s affidavits “is not to be interpreted to say that a timely 

motion to correct such an error would be denied in every case.” (Doc. 41, p. 

5). Plaintiff had ample time correct the deficiencies before the Court entered 

summary judgment. That time has passed. Now, he failed to provide facts 

showing that he was “prevented ... from submitting” a motion to correct the 

deficiencies “in a timely manner” before the undersigned rendered a decision. 

First Nat’l Life Ins. Co. v. California Pacific Life Ins. Co., 876 F.2d 877, 882 

(11th Cir. 1989). Thus, the Court finds that no excusable neglect exists in the 

preparation of the affidavits and the earlier decision to exclude the affidavits 

is not clear error.

Plaintiff’s second argument insists that “the Court did not consider 

whether Defendants met [their] burden of showing that Plaintiff’s arrest for a 

misdemeanor was within their discretionary authority” when the 

misdemeanor was not committed in Defendant Officers’ presence but 

captured by the Selma Police Department’s video surveillance system. (Doc. 

47, p. 3). As to his third argument, Plaintiff contends that § 11-47-992 of the 

Code of Alabama should have been considered in the Court’s analysis of 

Count III because it provides that “a municipality [may] be held liable for an 

2 Plaintiff cites to § 11-47-99 for the proposition that a municipality is liable 

for the negligent, carless, or unskillful acts of its officers, but the undersigned 

finds no such section in the Code of Alabama. However, Code of Alabama § 

11-47-190 does allow for recovery against a municipality when “injury or 

wrong was done or suffered through the neglect, carelessness, or 

unskillfulness of some ... officer ... of the municipality engaged in work 

therefor and while acting in the line of his or her duty ....” Thus, it is 

presumed that Plaintiff’s citation was in error and § 11-47-190 was intended.

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injury ‘suffered through neglect, carelessness[,] or unskillfulness.” Id. at 2.

Defendants respond that both arguments are improper for the same reason:

they attempt to raise arguments Plaintiff has not previously made. (Doc. 50, 

p. 3).

The United States Supreme Court reasoned, “Rule 59(e) permits a 

court to alter or amend a judgment, but it may not be used to ... raise 

arguments ... that could have been raised prior to the entry of judgment.” 

Exxon Shipping Co. v. Baker, 554 U.S. 471, 486 n.5 (2008); see also

Richardson v. Johnson, 598 F.3d 734, 740 (11th Cir. 2010) (“A motion for 

reconsideration cannot be used to relitigate old matters, raise argument or 

present evidence that could have been raised prior to the entry of judgment.”) 

Plaintiff’s second and third arguments were not made prior to being raised in

the present motion. Therefore, these new arguments are improper and do not 

call for alteration or amendment of the judgment.3

3 But even if Plaintiff had raised these arguments in his summary judgment 

response, the outcome would be the same. In the sense that Plaintiff argues 

that the misdemeanor was committed outside the officers’ presence, a 

warrantless arrest for a misdemeanor committed outside the officer’s 

presence does not violate the Fourth Amendment as long as it was supported 

by probable cause. Crosby v. Monroe County, 394 F.3d 1328, 1333 (11th Cir. 

2004). Thus, Plaintiff’s argument is not cognizable since the Court concluded 

probable cause existed. Also, commission of a misdemeanor “within an 

officer’s presence or view” has been applied more liberally than Plaintiff now 

insists. “The term ‘in his presence’ has been construed to authorize an arrest 

where an officer was apprised or could infer through the operation of any of 

his senses that a misdemeanor was being committed or attempted.” 

Burdeshaw v. Snell, 365 F. Supp. 2d 1194, 1199 (M.D. Ala. 2005). Further, at 

least one Alabama court has found that a misdemeanor is committed in an 

officer’s presence when a third party informs an officer of the commission of a 

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Plaintiff’s final ground for alteration or amendment is that no 

evidentiary basis exists from which to infer that Defendant Officers were in a 

state of heightened alert when they went to Plaintiff’s home. (Doc. 47, p. 4). 

As Defendants correctly posit, this part of the Court’s analysis was not 

dispositive in concluding that Defendants were due summary judgment for

Plaintiff’s excessive force claim. (Doc. 50, p. 4). Instead, Plaintiff’s excessive 

force claim turned on whether more than de minimis force was applied when 

officers placed Plaintiff in handcuffs then in the back of the police car. This 

answer remains in the negative.

 Thus, Plaintiff failed to show that the summary judgment was the 

product of clear error or resulted in manifest injustice, and this Court finds 

no exceptional circumstances that warrant relief from the Court’s previous 

misdemeanor and the officer then finds evidence supporting the basis of the 

misdemeanor from where the suspect is removed. See Jakes v. Alabama, 398 

So. 2d 342, 346 (Ala. Crim. App. 1981). Next, Plaintiff’s argument that § 11-

47-190 imposes vicarious liability for Defendant employees’ negligent, 

careless, or unskillful actions stops short of the entire analysis. Although the 

Alabama Legislature abrogated municipal immunity for negligent, careless, 

or unskillful actions of officers acting in the line of duty, a municipality is not 

liable unless the officer is first liable. Exford v. City of Montgomery, 887 F. 

Supp. 2d 1210, 1231 (M.D. Ala. 2012). In other words, the immunity granted 

an officer performing any discretionary function within the line and scope of 

his or her law enforcement duties under § 6-5-338(a) of the Code of Alabama 

extends to his or her principal, the municipality. Ala. Code § 6-5-338(b); 

Howard v. City of Atmore, 887 So. 2d 201, 2011 (Ala. 2003) (“§ 6-5-338 shields 

the city from liability for the alleged ‘neglect, carelessness and 

unskillfulness’” of its officer). This shield of immunity is removed by offering 

evidence of willful, malicious, fraudulent, bad faith, actions beyond authority, 

or mistaken interpretation of the law by the officer in question. Ex parte 

Cranman, 792 So. 2d 392, 405 (Ala. 2000). Plaintiff offered no such evidence 

in this case.

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order. 

CONCLUSION

Based on the reasons set forth above, Plaintiff’s Motion to Alter or

Amend Judgment (Doc. 47) is DENIED.

DONE and ORDERED this 19th day of May, 2016.

/s/ Callie V. S. Granade

SENIOR UNITED STATES DISTRICT JUDGE

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