“[W]e generally do not consider an issue or a new argument raised for the first time in a motion for reconsideration in the district court.”
How later courts described this case
- “[W]e generally do not consider an issue or a new argument raised for the first time in a motion for reconsideration in the district court.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ALLEN FITZGERALD CALTON CIVIL ACTION
VERSUS NO. 22-3372
UNITED STATES COURT OF APPEALS SECTION: “G”
FOR THE FIFTH CIRCUIT et al.
ORDER AND REASONS
Before the Court are two motions filed by Plaintiff Allen Fitzgerald Calton’s (“Plaintiff”):
(1) a Rule 59(e) Motion for Reconsideration1 and (2) a Motion for Leave to File a Supplemental
Rule 59(e) Motion.2 Plaintiff filed this civil rights action against Supreme Court Justice Samuel
Alito as Circuit Justice for the Fifth Circuit, eighteen named Fifth Circuit Judges, and eleven John
or Jane Doe Fifth Circuit Judges.3 Plaintiff alleged that the named defendants failed to review his
2021 federal habeas corpus application.4 Instead, a panel of judges construed his petition as a
request to file a second or successive habeas petition under 28 U.S.C. § 2254 and denied him
relief.5 Plaintiff claimed that Justice Alito and the Fifth Circuit Judges have collectively adopted a
policy, practice, or custom to disallow any one circuit judge from exercising original jurisdiction
over a case and transfer a habeas proceeding to another court.6 The Magistrate Judge recommended
1 Rec. Doc. 17.
2 Rec. Doc. 18.
3 Rec. Doc. 1.
4 Id. at 30.
5 Id. at 31.
6 Id. at 35–36.
that the claims be dismissed because judges enjoy absolute judicial immunity for all judicial acts.7
On March 7, 2023, the Court adopted the Report and Recommendation and dismissed Plaintiff’s
claims.8
Although the Fifth Circuit has noted that the Federal Rules “do not recognize a ‘motion for
reconsideration’ in haec verba,”9 it has consistently recognized that such a motion may challenge
a final judgment under Federal Rules of Civil Procedure 59(e) or 60(b).10 Federal Rule of Civil
Procedure 59(e) allows courts to alter or amend judgments after entry so long as a motion is “filed
no later than 28 days after the entry of the judgment.”11 Plaintiff filed the instant motion within 28
days after entry of the judgment. Therefore, it is properly considered under Rule 59(e).
“[A] motion to alter or amend the judgment under Rule 59(e) ‘must clearly establish either
a manifest error of law or fact or must present newly discovered evidence’ and ‘cannot be used to
raise arguments which could, and should, have been made before the judgment issued.”12 In
deciding motions for reconsideration, courts in this district consider four factors: (1) whether the
movant demonstrates the motion is necessary to correct manifest errors of law or fact upon which
the judgment is based; (2) whether the movant presents new evidence; (3) whether the motion is
necessary in order to prevent manifest injustice; and (4) whether the motion is justified by an
7 Rec. Doc. 3.
8 Rec. Doc. 3.
9 Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990).
10 Id.
11 Fed. R. Civ. P. 59(e).
12 Rosenblatt v. United Way of Greater Houston, 607 F.3d 413, 419 (5th Cir. 2010) (quoting Simon v. United
States, 891 F.2d 1154, 1159 (5th Cir. 1990)).
intervening change in the controlling law.13 However, “[r]econsideration of a judgment after its
entry is an extraordinary remedy that should be used sparingly.”14
In the first motion for reconsideration, Plaintiff does not challenge the underlying
conclusion that judges are entitled to judicial immunity.15 Instead, Plaintiff argues that
reconsideration is warranted because this Court should have transferred the case to the District
Court for the District of Columbia, rather than dismissing the case, because that court has authority
to issue a writ of mandamus to the Fifth Circuit.16 It is inappropriate to raise a new argument in a
motion for reconsideration.17 Moreover, Plaintiff has not demonstrated that it would be appropriate
to transfer this case to the District Court for the District of Columbia.
In the supplemental motion for reconsideration, Plaintiff argues that this Court erred by
failing to consider his argument that the judges are not entitled to sovereign immunity under the
Larson-Dugan exception.18 In Larson v. Domestic & Foreign Commerce Corp., the Supreme
Court explained that state actors are not entitled to sovereign immunity from “suits for specific
relief against officers of the sovereign which are not suits against the sovereign.”19 “The Court
cited two types of cases that may fall into this category: (1) those in which a ‘statute or order
conferring power upon the officer to take action in the sovereign’s name is claimed to be
13 See, e.g., Castrillo v. Am Home Mortg. Servicing, Inc., No. 09-4369, 2010 WL 1424398 at *3–4 (E.D. La.
Apr. 5, 2010) (Vance, J.).
14 Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004).
15 Rec. Doc. 17.
16 Id.
17 Digital Drilling Data Sys., L.L.C. v. Petrolink Servs., Inc., 965 F.3d 365, 374 (5th Cir. 2020) (“[W]e
generally do not consider an issue or a new argument raised for the first time in a motion for reconsideration in the
district court.”).
18 Rec. Doc. 18.
19 Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689 (1949).
unconstitutional,’ and (2) those in which the officer’s action is u/tra vires his or her authority.”°
Plaintiff has not demonstrated that either exception applies. Plaintiffs claims are related to judges’
handling of his habeas corpus proceedings. The judges were acting in the scope of their authority
when they ruled on his habeas case. Additionally, Plaintiff has not shown that the actions taken by
the judges were unconstitutional. Therefore, Plaintiff has not shown that the Larson-Dugan
exception applies.
Plaintiff does not present any manifest error of law or fact, newly discovered evidence, or
an intervening change in the controlling law. Therefore, Plaintiff provides no valid basis for
reconsideration. Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s motion for leave to file?! is GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s Rule 59(e) Motion for Reconsideration”
and Supplemental Rule 59(e) Motion” are DENIED.
NEW ORLEANS, LOUISIANA, this Ist day of May, 2023.
DV arrette Jobuvett 0.
NANNETTE JOIIWETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT
20 Danos v. Jones, 652 F.3d 577, 581-82 (Sth Cir. 2011) (quoting Larson, 337 U.S. at 689-90).
21 Rec. Doc. 18.
22 Rec. Doc. 17.
3 Rec. Doc. 18-2.