Liverman et al v. City of Petersburg et al, No. 3:2014cv00139 - Document 68 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 9/1/2015. Memorandum Opinion was sent to all counsel of record. (sbea, )
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Liverman et al v. City of Petersburg et al Doc. 68 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION HERBERT E. LIVERMAN, et al., Plaintiffs, v. Civil Action No. 3:14– CV– 139 CITY OF PETERSBURG, et al. Defendants. MEMORAN D U M OPIN ION THIS MATTER is before the Court on a Motion to Alter and Am end J udgm ent (“Motion”), pursuant to Federal Rule of Civil Procedure 59(e), filed by Plaintiffs Herbert E. Liverm an (“Liverm an”) and Vance R. Richards (“Richards”) (collectively, “Plaintiffs”). ECF No. 59. For the reasons stated below, the Court will DENY Plaintiffs’ Motion. I. FACTU AL AN D PROCED U RAL BACKGROU N D The instant case arose after Plaintiffs were put on probation for posting com m ents on the social m edia website, Facebook. On March 5, 20 14, Plaintiffs filed a Com plaint, alleging several 42 U.S.C § 1983 claim s against Defendants. In general, Plaintiffs alleged that Defendants City of Petersburg (“the City”) and J ohn I. Dixon, III (“Chief Dixon”) (collectively, “Defendants”) violated their First Am endm ent rights by subjecting them to an unconstitutional Social Networking Policy. In particular, Plaintiffs claim ed that the City of Petersburg Police Departm ent (“the Departm ent”) im properly im pinged upon their rights under the Free Speech Clause of the First Am endm ent by preventing them , through its written policies, from speakin g out as citizens regarding m atters of public concern and by retaliating against them for seeking to exercise these rights. Defendants denied liability in all respects and, in Chief Dixon’s individual capacity, asserted the defense of qualified im m unity to Plaintiffs’ claim s for m onetary dam ages. Dockets.Justia.com Plaintiffs’ causes of action were grouped into three categories. First, Plaintiffs alleged First Am endm ent violations pursuant to the 20 10 Social Networking Policy1 and 20 13 Social Networking Policy. Second, Plaintiffs claim ed that the Departm ent took adverse em ploym ent actions against them in retaliation for their com m ents at issue on Facebook. Third, Plaintiffs alleged that investigations were opened against them in retaliation for their notice of claim s in contravention of the First Am endm ent. Plaintiffs sought injunctive relief along with com pensatory and punitive dam ages. Plaintiffs also sought attorney’s fees. On October 22, 20 14, Plaintiffs filed a Motion for Partial Sum m ary J udgm ent, requesting that the Court find that the 20 10 Social Networking Policy and the 20 13 Social Networking Policy are unconstitutional. Defendants filed their Opposition on October 31, 20 14. Brief in Opposition to Plaintiffs’ Motion for Sum m ary J udgm ent as to Liability, Declaratory J udgm ent, and an Injunction as to Counts I and II (“Defs.’ Opp’n Mem .”). Subsequently, on Novem ber 3, 20 14, Plaintiffs filed a Reply. Reply to Opposition to Plaintiffs’ Motion for Sum m ary J udgm ent (“Pls.’ Reply”). On October 27, 20 14, Defendants filed a Motion for Sum m ary J udgm ent as to all counts contained in Plaintiffs’ Com plaint. Plaintiffs filed their response in opposition on Novem ber 6, 20 14. Opposition to Defendants’ Motion for Sum m ary J udgm ent (“Pls.’ Opp’n Mem .”). On Novem ber 10 , 20 14, Defendants filed their reply brief. Reply Brief in Support of Defendants’ Motion for Sum m ary J udgm ent (“Defs.’ Reply”). On May 6, 20 15, the Court issued an Order and an accom panying Mem orandum Opinion, in which it GRANTED IN PART and DENIED IN PART Plaintiffs’ Motion for Sum m ary J udgm ent. Specifically, the Court found that Liverm an’s speech at issue regarded a m atter of public concern while Richards’ speech, in contrast, regarded private m atters. As such, the Court GRANTED Plaintiffs’ Motion for Sum m ary J udgm ent as to Count I of Plaintiffs’ Com plaint and DENIED Plaintiff’s Motion for Sum m ary J udgm ent as to Count II. Accordingly, the Court 1 The 20 10 Social Networking Policy was not relevant or actionable under the facts. 2 DENIED Defendants’ Motion for Sum m ary J udgm ent as to Count I and GRANTED Defendants’ Motion for Sum m ary J udgm ent as to Count II. The Court then GRANTED Defendants’ Motion for Sum m ary J udgm ent as to Counts III and IV, finding that Chief Dixon was entitled to qualified im m unity and that no m unicipal liability attached because the City did not ratify the 20 13 Social Networking Policy. Further, the Court found that the City and Chief Dixon did not violate Plaintiffs’ First Am endm ent Rights to petition the govern m ent for redress by retaliating against them for noticing their claim s. As such, the Court GRANTED Defendant’s Motion for Sum m ary J udgm ent as to Counts V and VI of Plaintiffs’ Com plaint. On May 20 , 20 15, Plaintiffs filed the Motion to Alter and Am end J udgm ent now before the Court. Plaintiffs dispute each of the aforem entioned rulings against them . II. LEGAL STAN D ARD Federal Rule of Civil Procedure 59(e) governs m otions to alter or am end a judgm ent; however, the rule does not provide a standard that courts m ay use to grant such m otions. The Fourth Circuit articulated “three grounds for am ending an earlier judgm ent: (1) to accom m odate an intervening change in controlling law; (3) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent m anifest injustice.” Pac. Ins. Co. v. Am . N at. Fire Ins. Co., 148 F.3d 396, 40 3 (4th Cir. 1998) (citing EEPC v. Lockheed Martin Corp., 116 F. 3d 110 , 112 (4th Cir. 1997); Hutchinson v. Staton, 994 F.2d 10 76, 10 81 (4th Cir. 1993). “Rule 59(e) m otions m ay not be used, however, to raise argum ents which could have been raised prior to the issuance of the judgm ent, nor m ay they be used to argue a case under a novel legal theory that the party had the ability to address in the first instance.” Pac. Ins. Co., 148 F.3d at 40 3 (internal citations om itted). Rule 59(e) provides an “extraordinary rem edy that should be used sparingly.” Id. (internal citation om itted). 3 III. PARTIES’ ARGU MEN T 1. W H ETH ER TH E COU RT APPLIED TH E RIGH T STAN D ARD AS TO COU N T II i. Plain tiffs Plaintiffs do not specifically identify or refer to where they believe the Court erred in its Mem orandum Opinion issued on May 6, 20 15. Instead, they generally argue that the Court im properly “adopted the Pickering/ NTEU analysis, and concluded based on Harm an v. City of N.Y., 140 F.3d 111, 118 (2d Cir. 1998) that this elim inates any distinction between facial and asapplied challenges, essentially collapsing Counts III IV into Counts 1 and II.” Mem orandum in Support of Motion for Sum m ary J udgm ent as to Liability, Declaratory J udgm ent, and An Injunction as to Counts I and II of Plaintiffs’ Com plaint (“Pls.’ Mem .”) at 1. Plaintiffs assert the following: There is a difference . . . between ch a lle n g e s t o a n e m p lo y m e n t p o licy lim iting a public em ployer’s 2 speech and ch a lle n g e s t o a n in d iv id u a l a d v e r s e e m p lo y m e n t a ct io n based on a public em ployer’s 3 speech (action not based on a policy). The latter is judged by the Pickering analysis the Court actually applied. The form er is judged by the distinct Pickering/ NTEU the Court purported to apply. Id. (em phasis in the original). Plaintiffs argue that when the Court addressed their Motion, it m isapplied the standard articulated in Pickering v. Board of Education, 391 U.S. 563 (1968). Instead, Plaintiffs argue, the Court should have applied the standard articulated by the Court in Sanjour, known as the Pickering/ N TEU test. If the Court had adopted Plaintiffs’ argum ent, they assert that the Court would have “appropriately look[ed] beyond the particulars of Richard’s com m ents to conclude that the policy unconstitutionally infringes Richard’s right to com m ent as a citizen on m atters of public concern.” Id. at 3. Plaintiffs insist that the Court im properly relied on Sanjour v. EPA, 56 F.3d 85, 90 -91 (D.C. Cir. 1995) and Harm an v. City of 2 Although Plaintiffs discuss a public em ploy er’s speech, the Court assum es that Plaintiffs m ade a typographical error and intended to discuss a public em ploy ee’s speech. Indeed, the Pickering and NTEU concern speech m ade by a public em ployee, not a public em ployer. 3 Here, too, the Court assum es that Plaintiffs m ade a m istake and intended to discuss speech m ade by a public em ployee. 4 N .Y., 140 F.3d 111, 118 (2d Cir. 1998) to find that Richards’ speech on a particular occasion was not speech on a m atter of public concern. ii. D e fe n d an ts ’ Op p o s itio n Defendants disagree with Plaintiffs’ proffered assertion that the Court incorrectly applied the Pickering/ N TEU standard to Count II of the Com plaint. Defendants argue that “Plaintiffs’ own argum ents favor the Court’s reasoning and ruling.” Defs.’ Opp’n Mem . at 1. Defendants interpret the Court’s findings in Sanjour differently from Plaintiffs. Defendants explain that the Court in Sanjour begins by explaining that protected governm ent em ployee speech “m ust involve ‘m atters of public concern.’” Id. (quoting Sanjour, 56 F.3d at 90 ) (citation om itted). From this language, Defendants argue the following: because the “Court found, correctly, that Richards’ speech did not involve a m atter of public concern . . . . [and] [b]ecause Richards’ speech did not satisfy this prerequisite, the Court did not, as it should not, reach the question of whether the 20 13 Social Networking policy wrongfully prohibited Richards’ speech.” Id. at 2. For these reasons, Defendants argue that the Court’s declaratory judgm ent in favor of Liverm an should not be extended in favor of Richards. iii. Plain tiffs ’ Re p ly Plaintiffs’ argue that the constitutional validity or invalidity of the 20 13 Social Networking Policy is a legal question independent of any adverse em ploym ent action subsequently taken against Plaintiffs on a particular occasion in response to particular Facebook com m ents. Plaintiffs turn to “Sanjor v. EPA, 56 F. 3d 85 (D.E. Cir. 1995)”4 to support its argum ent. Pls.’ Reply at 2. Plaintiffs assert that the Court in Sanjour did not look at particular speech, but rather considered whether the challenged regulations prevented the plaintiffs in that case and sim ilarly situated public em ployees from addressing m atters of public concern. Id. Sim ilarly, Plaintiffs argue that the Court’s findings in Harm an dem onstrate that it is not necessary for a plaintiff to actually speak on a m atter of public concern or be disciplined under 4 Although Plaintiffs continuously cite to “Sanjor v. EPA, 56 F3d 85 (D.E. Cir. 1995), this Court assum es that Plaintiffs are referring to “Sanjour v. EPA, 56 F.3d 85 (D.C. Cir. 1995).” 5 the policy at issue in order to challenge the policy as restrictive of speech. Plaintiffs now argue that the proper question when analyzing the validity of a policy regulating speech is not whether a particular com m unication was or was not a m atter of public concern, but rather whether the challenged regulations prevent Plaintiffs an d sim ilarly situated public em ployees from addressing a m atter of public concern. 2 . MU N ICPAL LIABILITY ( OR LACK TH EREOF) i. Plain tiffs Plaintiffs argue that “the Court erred in determ ining that Chief Dixon is not the final decision m aker for the City with respect to the 20 13 Social Networking Policy. Essentially, they focus on Petersburg City Ordinance § 70 -36 and Va. Code § 15.2-170 1. Specifically, Plaintiffs acknowledge that it is undisputed that under Petersburg City Ordinance § 70 -36, “It shall be the duty of the chief of police to com m and and supervise the police force of the city under the general direction of the city m anager, and to see that the duties of the m em bers of such force, as defined by law and city ordinances, are properly perform ed.” Plaintiffs, without support, assert that it is of no m atter that the city m anager provides “general direction” to the chief of police because Chief Dixon can still be “the final decision m aker for the City as to General Orders issued regulating the off-duty behavior of City em ployees—i.e., the City’s police officers.” Pls.’ Mem . at 5. Additionally, Plaintiffs contend that the Fourth Circuit’s findings in Stickley v. Sutherly , 416 Fed. Appx. 268, 273 (4th Cir. 20 11) are inapposite because the Petersburg City Manager does not possess the broad reservation of authority that the town m anager enjoyed in the Stickley case. They also argue that Crow ley v. Prince George's County , Mary land, 890 F.2d 683 (4th Cir. 1989) is inapplicable to the instan t m atter because that case involved a personnel decision whereas the issue, here, was one of com m anding and supervising a police force. ii. D e fe n d an ts ’ Op p o s itio n In opposition to Plaintiffs’ argum ents, Defendants fervently argue that the Court was 6 correct when it found that Chief Dixon was not a final policy m aker. First, Defendants contend that Plaintiffs ignore the plain language of Petersburg City Ordinances §§ 70 -33 and (2), which provide that the Chief of Police and those in the Departm ent serve at the pleasure of the City Manager and, additionally, vest the City Manager with police powers and control of and supervision over the Departm ent. Defs.’ Mem . at 3. Defendants correctly underscore, “After ignoring these ordinances, Plaintiffs conclude, without authority, that the General Orders of the Chief of Police are m unicipal policies if an ordinance does not provide for review by city officials.” Id. iii. Plain tiffs ’ Re p ly Plaintiffs argue that m unicipal liability attached in this case because the 20 13 Social Networking Policy was an “express, written, General Order issued by the Chief, who is given by Petersburg City Code § 70 -36 the power to ‘com m and and supervise the police force of the city under the general direction of the city m anager.’” Pls.’ Reply at 4. Say Plaintiffs, conclusively, because “it is a written policy established pursuant to a grant of authority by the City Ordinance, it is an express policy of the City.” Id. Plaintiffs then reassert that “Chief Dixon is the final policym aker of the City and the Departm ent with respect to the day-to-day rules and regulations governing the Departm ent, including the establishm ent of general orders. His decisions are final, unless perhaps the City Manager overrules the policies.” Id. 3 . RICH ARD S’ COMMEN TS i. Plain tiffs According to Plaintiffs, the Court inappropriately considered Richards’ com m ents separate and apart from those Liverm an m ade. Plaintiffs assert that Richards’ com m ents “ratified and built on Liverm an’s com m ents” and were “as m uch a m atter of public concern as Liverm an’s com m ents.” Pls.’ Mem . at 7. ii. D e fe n d an ts ’ Op p o s itio n 7 Defendants argue that, after considering the content, form , and context of Richards’ com m ents, the Court engaged in a “well-reasoned discussion,” regarding why Richard spoke on a m atter of private, not public, concern. Defs.’ Opp’n Mem . at 3. Defendants argue that the Court went through a proper and thoughtful process to arrive to the correct conclusion that Richards’ com m ents fell outside the purview of First Am endm ent protection. Id. 4 . QU ALIFIED IMMU N ITY i. Plain tiffs Plaintiffs insist that the Court erred in determ ining that qualified im m unity protected Chief Dixon with respect to disciplining Liverm an and Richards. To support their position, Plaintiffs conclusively argue that “the statem ents of Liverm an (and Richards) are clearly about a m atter of public concern.” Pls.’ Mem . at 7. ii. D e fe n d an ts ’ Op p o s itio n Defendants argue, “The com m ents m ade by Liverm an and Richards were not ‘clearly’ a m atter of public concern, as argued by Plaintiffs.” Defs.’ Opp’n at 3. To support their position, Defendants look to the Fourth Circuit’s findings in Stickley . In Stickley , the Fourth Circuit explained that the determ ination of whether a com m ent is of public or private concern is very fact-intensive and the balancing of interests very subjective. Id. at 3 (citing Stickley , 416 Fed. Appx. at 272). Defendants argue that this Court heeded the Fourth Circuit’s directive and thus asserts that this Court correctly determ ined Chief Dixon is entitled to qualified im m unity. 5 . TH E COU RT’S D ETERMIN ATION AS TO TH E N OTICE OF CLAIMS ALLEGATION S i. Plain tiffs Without support, Plaintiffs argue that the “Court further erred in finding that the discipline following Plaintiff’s notice of claim s was not pretextual, especially as the Chief of Police exercised extensive control over the internal investigation process.” Pls.’ Mem . at 8. According to Plaintiffs, “[f]airly considered, the internal investigations were fishing expedition.” 8 Id. To support their position, Plaintiffs argue, in part, the following: (1) “[t]he first investigation had an unlim ited tim efram e and a broad scope”; (2) “[t]he second investigation against Liverm an involved the Chief of Police sum m arily directing a sergeant to discipline Liverm an”; (3) “[t]he investigation concerning Richards was baseless . . . [and] [t]he fact that it was dism issed with no finding of fault does not m ean it was not retaliatory or dam aging”; and (4) [t]he second investigation purported to investigate one issue but punished him on a separate issue.” Id. ii. D e fe n d an ts ’ Op p o s itio n In essence, Defendants argue that the Court was presented with undisputed facts, showing that that m ost of the investigations cited by Plaintiffs as the bases of their claim s alleged in their Com plaint were m ade by fellow officers. Defendants proffered evidence, dem onstrating how Liverm an’s counsel m ade a Freedom of Inform ation Act (“FOIA”), 5 U.S.C. § 552, which led to the discovery of inappropriate em ails. Further, Defendants argue that Liverm an even adm itted, in writing, that he engaged in sexual relations “on departm ent tim e and on and in departm ent property.” Defs.’ Opp’n Mem . at 4. Say Defendants, Plaintiffs fail to raise any new facts or argum ents to justify the Court’s reconsideration or am endm ent of its decision on these claim s. iii. Plain tiffs ’ Re p ly Plaintiffs argue that “the Court m isinterpreted various facts.” Pls.’ Reply at 7. For exam ple, Plaintiffs contend that the Court erred in finding that it “becam e clear that Liverm an was having sex on the job and using Departm ent property to engage in sexual conduct.” ECF No. 54 at 35. Plaintiffs argue that the Court ignored evidence of pretext, arguing that other officers were disciplined for having sex on the job and Liverm an’s punishm ent was disproportionate by com parison. See id. 6 . IN JU N CTIVE RELIEF 9 i. Plain tiffs Plaintiffs assert that the “Court erred in refusing an injunction m erely because it was not explicitly addressed” in their m oving papers. Id. at 8 . As to Richards, Plaintiffs subm it that he should be entitled to an injunction since he rem ains subject to the 20 13 Social Networking Policy as long as he rem ains em ployed with the Departm ent. Additionally, Plaintiffs assert, “Richards and Liverm an are also entitled to injunctive relief to have their discipline for violating the policy stricken from their personnel files, and not used in any personnel or disciplinary decisions.” In the alternative, Plaintiffs now argue that the Court should hold an evidentiary hearing on the issue of whether the prerequisites for an injunction exist in this case. ii. D e fe n d an ts ’ Op p o s itio n In short, Defendants argue that Plaintiffs failed to request injunctive relief in their m oving papers and did not argue the elem ents necessary to support such relief. As such, Defendants insist that Plaintiffs cannot now argue that the Court erred to give them the relief they failed to initially request. Therefore, Defendants ask that the Court not alter or am end its decision to deny injunctive relief. IV. AN ALYSIS The first two grounds found in Pacific Insurance are inapplicable to Plaintiffs’ Motion. Therefore, the Court m ust determ ine whether its May 6, 20 15 Order m ust be am ended “to correct a clear error of law or prevent m anifest injustice.” Plaintiffs’ argum ents for am ending the Court’s judgm ent are unpersuasive. Plaintiffs assert the following argum ents. First, Plaintiffs assert that the “Court erred in its application and interpretation of the appropriate standard as to Counts I through IV, especially as to Counts I and II.” Pls.’ Mem . at 1. Further, as to m unicipal liability, Plaintiffs assert that the “Court erred in determ ining that the Chief is not the final decision m aker for the City with respect to the 20 13 Social Networking Policy.” Id. at 4. Plaintiffs then argue that the “Court erred in finding that Richards spoke on a m atter of purely private concern” because it inappropriately 10 considered Richards’ com m ents separate and apart from those m ade by Liverm an. Id. at 6. Moreover, Plaintiffs argue that the “Court erred in determ ining the [sic] that qualified im m unity protected Chief Dixon with respect to disciplining Liverm an (or Richards).” Id. at 7. Plaintiffs also contend that the “Court erred in finding that the discipline following . . . [Plaintiffs’] notice of claim s was not pretextual, especially as the Chief of Police exercised extensive control over the internal investigation process.” Id. at 8 . Finally, Plaintiffs also assert that the “Court erred in refusing an injunction m erely because it was not explicitly addressed” in their m oving papers. Id. at 8. The Court will address Plaintiffs’ argum ents in chronological order. 1. W H ETH ER TH E COU RT APPLIED TH E RIGH T STAN D ARD AS TO COU N T II As far as the Court can decipher, Plaintiffs take issue with the Court’s footnote in its May 6, 20 15 Order, which provided the following: To the extent Plaintiffs assert any facial, as applied, or overbreath challenges to the 20 13 Social Networking Policy, or rely upon the Suprem e Court’s prior restraint doctrine, this Court follows the approach taken in other courts, which have indicated that these claim s m erge into the Pickering/ NTEU analysis. See Harm an v. City of N.Y., 140 F.3d 111, 118 (2d Cir. 1998) (“[U]nder the Pickering/ N TEU test[,] the distinction between facial as-applied constitutional challenges becom es unim portant”); W eaver v. United States Info. Agency , 87 F.3d 1429, 1440 (D.C. Cir. 1996) (holding that the special concerns im plicated by prior restraints can be addressed in the Pickering analysis). ECF No. 54 at 11 n.14. First, Plaintiffs argue “that the constitutional validity of invalidity of the 20 13 Social Networking Policy is a legal question independent of any adverse em ploym ent action subsequently taken against . . . Plaintiffs on a particular occasion in response to particular Facebook com m ents.” Pls.’ Reply at 1. Second, they add that “[i]f it was unconstitutional to establish the [20 13 Social Networking] Policy, then the establishm ent of . . . [that policy] violated the rights of both Liverm an and Richards, as they were both subjected to the Policy. Finally, Plaintiffs m aintain that Sanjour and Harm an stand in opposition to the Court’s analysis in this case. 11 Plaintiffs’ argum ent—that being, the Court applied the wrong test on the issue of public concern in Count II because whether adverse em ploym ent action was taken is of no m atter in assessing the constitutionality or unconstitutionality of the 20 13 Social Networking Policy—is unavailing. First, the Court’s own analysis m irrors a great deal of that contained in Plaintiffs’ m oving papers. For exam ple, in Plaintiffs’ brief in support of their m otion for partial sum m ary judgm ent as to Counts I and II, Plaintiffs set forth the following road m ap for the Court: This claim alleges that the Defendants enacted a policy that threatened unconstitutional discipline. Adverse em ploym ent action violates a public em ployee’s right to free speech if: (1) the em ployee spoke as a citizen on a m atter of public concern, (2) the em ployee’s and public’s interests in the First Am endm ent expression outweighs the em ployer’s legitim ate interest in the efficient operation of the workplace, if that interest was infringed by the com m unication, and (3) the protected speech is a substantial factor in the decision to take adverse em ploym ent action. Pls.’ Mem . at 9-10 (citing Sm ith v. Gilchrist, 749 F. 3d 30 2, 30 8 (4th Cir. 20 14); Love-Lane v. Martin, 355 F.3d 766, 776 (4th Cir. 20 0 4)). Plaintiffs then asserted that Counts I and II alleged that “Defendants im posed an unconstitutional Social Networking Policy, chilling em ployees’ free speech.” Id. at 11. To be clear, Plaintiffs then asserted one m ain argum ent—“As detailed below, . . . [the 20 13 Social Networking Policy] of the Petersburg Police Departm ent . . . each have four elem ents that place them in violation of clearly established law .” Id. at 12 (em phasis added). Thus, in their initial m oving papers, Plaintiffs argue the 20 13 Social Networking Policy is unconstitutional because it “expressly” m isrepresents that its provisions are “consistent with established case law,” id. at 20 , despite having the following four flaws: First, these policies ignore any distinction between official speech as a citizen. “Second, in place of the case-by-case balancing-of-interests m andated under the First Am endm ent case law for speech on m atters of public concern, these policies substitute bright line exceptions to the First Am endm ent’s protections. Third, the policies im pose bright-line, content-based prohibitions on certain speech without clearly exem pting speech about m atters of public concern, and m isrepresents these prohibitions as consistent with the established case law. Finally, these policies threaten disciplinary action based on overly broad and am biguous policies. 12 Id. at 12. Plaintiffs rely on the “leading case of Pickering v. Board of Education” to support their position that “this case [involves] . . . policies that purport to authorize what the Suprem e [Court] disavowed in Pickering.” Id. at 21 (em phasis in original). In case there was any confusion, Plaintiffs provide that “[t]he core question for the Court under this m otion for sum m ary judgm ent is whether Defendants’ . . . 20 13 Social Networking Polic[y] . . . [is] consistent with the Constitutional standards established in the case law. They are not.” Reply to Opposition to Plaintiffs’ Motion for Sum m ary J udgm ent (“Pls.’ Reply Defs.’ Opp’n Mot. for Sum m . J .”) at 4. Plaintiffs then expressly reassert the elem ents required to establish a claim for adverse em ploym ent action. Id. Plaintiffs now attem pt to raise argum ents not contained in their initial m oving papers requesting partial sum m ary judgm ent. Plaintiffs now rely on the approach taken under the Pickering/ N TEU balancing test, which the Court cited in its footnote, to form ulate their argum ent that serves as the basis for the instant Motion. However, it well-established that “Rule 59(e) m otions m ay not be used to raise argum ent which could have been raised prior to the issuance of the judgm ent. . . .” Pac. Ins. Co., 148 F.3d at 40 3. Plaintiffs extrapolate legal argum ents and authority from the Court’s Mem orandum Opinion to form new argum ents. Plaintiffs’ argum ent concerning the Court’s two citations to Sanjour fails because Sanjour was not dispositive here. Likewise, the Court’s sole citation to Harm an in a footnote in the Court’s Mem orandum Opinion did not form any basis of the Court’s decision as to the facts of the instant m atter. Plaintiffs, therefore, fail to dem onstrate a clear error of law or clearly establish a m anifest error of law. 2 . MU N ICPAL LIABILITY ( OR LACK TH EREOF) Plaintiffs argue that the Court erred in determ ining that the Chief is not the final decision m aker for the City with respect to the 20 13 Social Networking Policy. Plaintiffs also assert, without authority, that the General Orders of the Chief of Police are m unicipal policies if an ordinance does not provide for review by city officials. 13 However, Rule 59(e) m otions should not be used as opportunities to rehash issues already ruled upon because a litigant is displeased with the result. See Hutchinson v. Staton, 994 F.2d 10 76, 10 82 (4th Cir. 1993) (stating that “m ere disagreem ent does not support a Rule 59(e) m otion”); see also Consulting Eng'rs, Inc. v. Geom etric Softw are Solutions & Structure W orks LLC, 20 0 7 WL 20 2190 1, at *2 (D.S.C. J uly 6, 20 0 7) (“A party's m ere disagreem ent with the court's ruling does not warrant a Rule 59(e) m otion, and such m otion should not be used to rehash argum ents previously presented or to subm it evidence which should have been previously subm itted.”). Upon review, the Court is not convinced that it should reconsider the judgm ent based on the argum ents Plaintiffs advance since they have already been considered and rejected. 3 . RICH ARD S’ COMMEN TS Plaintiffs argue that the Court erred in finding that Richards spoke on a m atter of private concern. Plaintiffs contend that “the Court places undue em phasis on the idiom Richards uses instead of the substance of his statem ent in analyzing whether this is a m atter of public concern.” Pls.’ Mem . at 6. Additionally, Plaintiffs insist that the Court inappropriately considered Richards’ com m ents separate and apart from those m ade by Liverm an. Id. However, the facts clearly show otherwise. Plaintiffs’ proffered assertions do not dem onstrate a clear error of law or m anifest injustice on the part of this Court. See ECF No. 54 at 17, 18. “‘[Mere disagreem ent does not support of a Rule 59(e) m otion’ on the ground of clear error of law.” Acevedo v. Colvin, No. CIV.A. 0 :12-2137-TMC, 20 14 WL 3798813, at *1 (D.S.C. Aug. 1, 20 14) (quoting United States ex rel. Becker v. W estinghouse Savannah River Co., 30 5 F. 3d 28 4, 290 (4th Cir. 20 0 3) 4 . QU ALIFIED IMMU N ITY Plaintiffs argue that the Court erred in determ ining that qualified im m unity protected Chief Dixon with respect to disciplining Liverm an and Richards. In support of its position, Plaintiffs asserts that “the statem ents of Liverm an (and Richards) clearly were about a m atter of 14 public concern.” Pls.’ Mem . at 7. This Court disagrees. Indeed, “[W]here a sophisticated balancing of interests is required to determ ine whether the plaintiff’s constitutional rights have been violated, only infrequently will it be ‘clearly established’ that a public em ployee’s speech on a m atter of public concern is constitutionally protected.” Stickley , 416 Fed. Appx. at 272 (quoting McVey v. Stacy , 157 F. 3d 271, 277 (4th Cir. 1998)) (citation om itted)). Further, it is well settled that a m otion to reconsider cannot appropriately be granted where the m oving party sim ply seeks to have the Court “rethink what the court has already thought through—rightly or wrongly.” In re Yankah, 514 B.R. 159, 165 (E.D. Va. 20 14) (Spencer, J .) (quoting Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 10 1 (E.D.Va.1983)). Here, Plaintiffs’ Motion m erely asks the Court to rethink what it already thought through. Plaintiffs have not established that the Court’s holding that Chief Dixon is entitled to qualified im m unity is contrary to law or m anifestly injustice. 5 . TH E COU RT’S D ETERMIN ATION AS TO TH E N OTICE OF CLAIMS ALLEGATION S Plaintiffs argue that the Court “erred in finding that the discipline following the Plaintiff’s notice of claim s was not pretextual . . . .” Pls.’ Mem . at 8 . Specifically, Plaintiffs argue that his Court “m isinterpreted various facts” in reaching its conclusion. Pls.’ Reply at 7. Plaintiffs fail to dem onstrate a legally sufficient basis for warranting reconsideration of the Court’s findings. But the Court carefully considered the undisputed evidence proffered to reach its conclusion. And, the Court was not guided by erroneous legal principles and did not rest on clearly erroneous factual findings. Further, Plaintiffs have not cleared the high hurdle of the m anifest injustice standard as to these claim s. 6 . IN JU N CTIVE RELIEF Finally, Plaintiffs argue that “the Court erred in refusing an injunction m erely because it was not explicitly addressed in the sum m ary judgm ent m otions.” Pls.’ Mem . at 8. Plaintiffs’ argum ents are unpersuasive. Plaintiffs failed to request injunctive relief in their m oving papers 15 and failed to argue the necessary elem ents to support such relief. Plaintiffs cannot now argue that the Court erred to give them relief they failed to request. Plaintiffs do not establish a legally sound basis to alter or am end its judgm ent in this regard. V. CON CLU SION For the aforem entioned reasons, the Court will DENY Plaintiffs’ Motion. ECF No. 59. Let the Clerk send a copy of this Mem orandum Opinion to all counsel of record. An appropriate Order shall issue. ENTERED this 1st _____________________/s/________________ James R. Spencer Senior U. S. District Judge day of Septem ber 20 15. 16
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