Orem v. Rephann

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SONJA OREM, 

Plaintiff-Appellee,

v.

 No. 07-1696

MATT REPHANN, Individually and in

his Official Capacity,

Defendant-Appellant.



Appeal from the United States District Court

for the Northern District of West Virginia, at Martinsburg.

Irene M. Keeley, Chief District Judge.

(3:05-cv-00098)

Argued: March 20, 2008

Decided: April 28, 2008

Before GREGORY and SHEDD, Circuit Judges, and

William L. OSTEEN, Jr., United States District Judge

for the Middle District of North Carolina, sitting by designation.

Affirmed by published opinion. Judge Gregory wrote the majority

opinion, in which Judge Osteen joined. Judge Shedd wrote a separate

concurring opinion.

COUNSEL

ARGUED: Bridget M. Cohee, STEPTOE & JOHNSON, Martins-

burg, West Virginia, for Appellant. Gregory A. Bailey, ARNOLD,

CESARE & BAILEY, Shepherdstown, West Virginia, for Appellee.

2 OREM v. REPHANN

ON BRIEF: Lucien G. Lewin, STEPTOE & JOHNSON, Martins-

burg, West Virginia, for Appellant.

OPINION

GREGORY, Circuit Judge:

On March 26, 2005, Sonja Orem ("Orem") was arrested for dis-

rupting and assaulting an officer after being served with a Family Pro-

tective Order ("FPO"). During her transport to a West Virginia

regional jail, Deputy Matt Rephann ("Deputy Rephann") twice tased

Orem. Because Deputy Rephann’s use of the taser constituted exces-

sive force in violation of the Fourteenth Amendment, we affirm the

district court’s denial of summary judgment.

I.

The day Orem was served with a FPO, she had ransacked her hus-

band’s offices.1 She destroyed phones, a computer keyboard and

kicked a hole in the wall. She also had assaulted her husband and

thrown his clothing and belongings into their front yard.

Once served with the FPO, she initially left the residence. Under

the influence of prescription drugs, marijuana, and alcohol, Orem

quickly became enraged and, in her words, started "flipping out"

when she discovered that she would not be allowed to see her son for

six months. She drove back to the house, at a high-rate of speed, skid-

ded into a ditch, left her car and charged at a police officer. Three

officers restrained Orem, placed her in handcuffs, a foot restraint

device ("hobbling device"), and put her in a police car. The foot hob-

bling device was fastened around her ankles and secured by extending

its strap out the front and back passengers’ doors of the police vehi-

cle.

While being transported to the Eastern Regional Jail ("ERJ"), Orem

1

Orem’s husband, John Orem, is a former deputy of the sheriff’s

department.

OREM v. REPHANN 3

yelled, cursed and banged her head against the police car window

three or four times. Her jumping and banging around in the back seat

was so intense that the vehicle rocked, loosening the hobbling device

and requiring Deputy T.E. Boyles, the transporting officer, to pull the

vehicle over. Deputy Rephann was voluntarily following Deputy

Boyles to ERJ; Deputy Boyles had not requested assistance. Deputy

Rephann knew that Deputy Boyles was transporting a prisoner who

was charged with battery and obstruction of a police officer, and who

reportedly was "unruly or combative." When Deputy Boyles pulled to

the side of the road, Deputy Rephann, along with a third deputy,

pulled in behind Deputy Boyles’s vehicle.2

Deputy Rephann exited his vehicle and approached Deputy Boyles’

car with his taser gun drawn. Deputy Boyles got out of his car,

opened the front passenger door of the car, unlocked the rear door and

attempted to tighten the hobbling device. Deputy Rephann opened the

rear door and the following exchange occurred between him and

Orem:

Deputy Rephann: Unlock your door. She’s got a hobble on

her. You need to calm down, Nikki.3

Orem: No, they’re taking my son. John beat the

fuck out of me! And this is what I - -

fucking me. John hit me! Look at my

back. Look at (inaudible) —

Deputy Rephann: Well, calm down, and take care of it

somewhere else.

Orem: I can’t. I’m going to jail. They took my

son.

2

This incident was recorded by Deputy Rephann’s dashboard camera.

Both the district court and this Court reviewed the videotape retrieved

from the camera.

3

Deputy Rephann refers to Sonja Orem informally as "Nikki" because

ostensibly he knew her and her husband, John Orem.

4 OREM v. REPHANN

Deputy Rephann: Stop it.

Orem: Fuck you!

Deputy Rephann: I’m telling you, you’d better stop it.

[taser gun clicking]

Orem: (Scream.) Don’t hit me.

Deputy Rephann: Calm down now.

Orem: I’m suing everybody, you mother

fucker.

Deputy Rephann: You need to respect us. Right now

you’re not.

Orem: (Cries.)

(J.A. 590.) During this exchange, Deputy Rephann shocked Orem

twice with a taser gun — underneath her left breast and on her left

inner thigh. Orem then became compliant and was transported to the

ERJ without further incident. However, a permanent sunburn-like scar

was left where the taser had been applied to her thigh. At the time of

this incident, Orem was 27 years old and weighed 100 pounds. Dep-

uty Rephann, on the other hand, weighed 280 pounds.

Orem sued Deputy Rephann, in his official capacity as an officer

of the Berkeley County Sheriff’s Department and his personal capac-

ity, alleging that he had used excessive force while she was being

transported in the police vehicle. The district court denied Deputy

Rephann’s motion for summary judgment on the basis that Deputy

Rephann’s use of force was unreasonable and in violation of Orem’s

Fourth Amendment rights. Deputy Rephann filed this interlocutory

appeal challenging the district court’s denial of summary judgment

and his Rule 52 Motion to amend the court’s findings.

II.

We review de novo a district court’s denial of summary judgment

and qualified immunity, construing all facts in the light most favor-

OREM v. REPHANN 5

able to the nonmovant. American Civil Liberties Union of Maryland,

Inc. v. Wicomico County, Md., 999 F.2d 780, 784 (4th Cir. 1993).

Notwithstanding the absence of a final judgment, we have jurisdiction

to review "a district court’s denial of a claim of qualified immunity"

because "to the extent that it turns on an issue of law, [it] is an appeal-

able ‘final decision’ within the meaning of . . . [28 U.S.C. § 1291]

. . . ." Henry v. Purnell, 501 F.3d 374, 376 (4th Cir. 2007) (citing

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)).

III.

"Government officials performing discretionary functions generally

are shielded from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known." Harlow v. Fitzger-

ald, 457 U.S. 800, 818 (1982). In deciding whether Deputy Rephann

is entitled to qualified immunity, we examine: (1) whether the facts

demonstrate that Deputy Rephann violated Orem’s constitutional

right to be free from excessive force; and, (2) if so, whether Deputy

Rephann’s conduct was objectively reasonable in light of the then

clearly-established constitutional right. Saucier v. Katz, 533 U.S. 194,

200 (2001). With these principles in mind, we first consider whether

the facts, when viewed in Orem’s favor, demonstrate that Deputy

Rephann used excessive force.

A.

Our analysis of an excessive force claim brought under § 1983

begins with "identifying the specific constitutional right allegedly

infringed by the challenged application of force." Graham v. Connor,

490 U.S. 386, 394 (1989). Here, the district court analyzed Orem’s

claim that Deputy Rephann used excessive force under the Fourth

Amendment’s "objective reasonableness standard." However, we

have made clear that Fourth Amendment protections do not extend to

arrestees or pretrial detainees. Riley v. Dorton, 115 F.3d 1159 (4th

Cir. 1997) (en banc). Indeed, in Riley, we held that "[t]he Fourth

Amendment [only] governs claims of excessive force during the

course of an arrest, investigatory stop, or other ‘seizure’ of a person."

Id. at 1161. Whereas, "excessive force claims of a pretrial detainee [or

arrestee] are governed by the Due Process Clause of the Fourteenth

6 OREM v. REPHANN

Amendment." Young v. Prince George’s County, Maryland, 355 F.3d

751, 758 (4th Cir. 2004) (quoting Taylor v. McDuffie, 155 F.3d 479,

483 (4th Cir. 1998)).

The point at which Fourth Amendment protections end and Four-

teenth Amendment protections begin is often murky. But here,

Orem’s excessive force claim arises during her transport to EJR, after

she was arrested. While she had not been formally charged, her status

as an arrestee requires application of the Fourteenth Amendment to

her claim. The district court erred in applying the Fourth Amendment.4

We, nevertheless, affirm its denial of summary judgment on alterna-

tive grounds. See United States v. Smith, 395 F.3d 516, 518-19 (4th

Cir. 2005) ("We are not limited to evaluation of the grounds offered

by the district court to support its decision, but may affirm on any

grounds apparent from the record.").

B.

Deputy Rephann argues that the district court erred in denying

summary judgment. He contends that his use of the taser gun was not

excessive because Orem was unruly and uncooperative. To the con-

trary, Orem maintains that the Deputy Rephann’s use of the taser was

unnecessary and excessive given that she was handcuffed and in foot

restraints. We agree and, therefore, cannot conclude, as a matter of

law, that the force used by Deputy Rephann was constitutionally per-

missible.

To succeed on an excessive force claim under the Due Process

Clause of the Fourteenth Amendment, Orem must show that Deputy

Rephann "inflicted unnecessary and wanton pain and suffering." Tay-

lor v. McDuffie, 155 F.3d 479, 483 (4th Cir. 1998) (citing Whitley,

475 U.S. at 320). "In determining whether [this] constitutional line

has been crossed, a court must look to such factors as the need for the

application of force, the relationship between the need and the amount

of force used, the extent of the injury inflicted, and whether the force

4

The district court, however, did state in a footnote that the case could

have been framed as a Fourteenth Amendment due process violation for

pretrial detainment treatment. The district court limited its analysis to the

Fourth Amendment based on the parties’ pleadings.

OREM v. REPHANN 7

was applied in a good faith effort to maintain and restore discipline

or maliciously and sadistically for the very purpose of causing harm."

Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973).

From the facts as we must view them, a reasonable jury could infer

Deputy Rephann’s actions were not a "good faith effort to restore

order" but, rather, wanton and unnecessary. When Deputy Boyles

pulled his vehicle over and exited, it was clear that some action was

necessary to calm Orem and safely transport her to EJR. Deputy

Boyle immediately began to re-secure the hobbling device. Deputy

Rephann, on the other hand, began talking with Orem, whom he knew

because her husband was a former sheriff deputy. Deputy Rephann

did not attempt to assist Deputy Boyles in tightening the hobbling

device. Instead, he began telling Orem she needed to calm down and

refrain from moving in the vehicle. While Deputy Rephann makes

much of his verbal attempts to secure order, they do not lessen the

unreasonableness of his subsequent actions.

When it appeared to Orem that Deputy Rephann was not concerned

with her husband’s alleged abuse or the loss of her son, Orem force-

fully stated "fuck you" to Deputy Rephann. To which he responded,

"stop it" and tased her. Although Deputy Rephann testified that "stop

it" referred to Orem moving her feet around, it is not clear that him

stating "stop it" and subsequently tasering Orem was not in fact a

response to her stating "fuck you," considering that after shocking

Orem, Deputy Rephann commanded that she respect the officers.

Moreover, Deputy Rephann acknowledges that he did not follow

the Berkeley County Sheriff’s Department’s Taser policy, which

requires use of open hand measures before application of the taser.

Yet, he maintains that he used the taser to ensure that Orem would

not endanger herself. But given that Orem was handcuffed, weighed

about 100 pounds, had her ankles loosened in the hobbling device

which Deputy Boyles was tightening, and was locked in the back seat

cage of Deputy Boyles’s car until Deputy Rephann opened the door,

we find this explanation tenuous at best.

Deputy Rephann placed the taser under Orem’s left breast and

inner thigh. Considering his reach was closer to her right side and

other parts of her body, a reasonable juror could also infer that Dep-

8 OREM v. REPHANN

uty Rephann’s application of force in these areas was done for the

very purpose of harming and embarrassing Orem — motives that are

relevant factors, despite Deputy Rephann’s contentions, to determin-

ing whether the use of force was excessive under the Fourteenth

Amendment. See Williams v. Landen, 902 F.2d 927 (4th Cir. 1990)

(unpublished) (noting that there was an unresolved issue of fact

regarding a prison guards motives for spraying two cans of mace on

an inmate who had retreated as far as he could in his cell); see also

Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1243 (10th Cir. 2003)

(noting that the motives of the state actor are relevant and stating that

"[f]orce inspired by malice or by ‘unwise, excessive zeal amounting

to an abuse of official power that shocks the conscience . . . maybe

redressed under [the Fourteenth Amendment].’"

While we recognize that "not every push or shove, even if it may

later seem unnecessary" is serious enough to entail a deprivation of

a constitutional right, Graham v. Connor, 490 U.S. 386, 396 (1985),

the facts, here, when viewed in a light most favorable to Orem, evi-

dence that Deputy Rephann’s use of the taser gun was wanton, sadis-

tic, and not a good faith effort to restore discipline. Orem’s behavior

without question was reprehensible, but Deputy Rephann’s use of the

taser was an "unnecessary and wanton infliction of pain." Whitely v.

Albers, 475 U.S. 312, 320 (1991).

C.

Nevertheless, Deputy Rephann argues that summary judgment is

proper because Orem only suffered de minimus injury. Although de

minimus injury can foreclose a Fourteenth Amendment claim, the dis-

trict court properly recognized that Orem’s injury consisted of far

more than the resulting sunburn-like scar. Riley, 115 F.3d at 1167-68.

It is well settled that a pretrial detainee with only de minimus injury

may only recover if the challenged conduct resulted "in an impermis-

sible infliction of pain" or was otherwise "of a sort repugnant to the

conscience of mankind." Norman v. Taylor, 25 F.3d 1259, n.4 (4th

Cir. 1994) (en banc); Hudson v. McMillian, 503 U.S. 1, 10 (1992)

(quoting Whitely, 475 U.S. at 327). While Deputy Rephann makes

much of the fact that the taser was only applied for 1.5 seconds, Orem

did experience electric shock, pain, and developed a scar. As the

Eighth Circuit poignantly explained:

OREM v. REPHANN 9

[A] stun gun inflicts a painful and frightening blow, which

temporarily paralyzes the large muscles of the body, render-

ing the victim helpless. This is exactly the sort of torment

without marks . . . which, if inflicted without legitimate rea-

son, supports the Eighth Amendment’s objective compo-

nent.

Hickey v. Reeder, 12 F.3d 754, 757 (8th Cir. 1993) (noting that "tor-

ment without marks" was the sort of excessive force the Supreme

Court was concerned with in deciding prisoner excessive force claims

under the Eighth Amendment). The district court, thus, properly

rejected Deputy Repahnn’s claim that Orem’s injuries were de mini-

mus simply because the taser was only applied for a few seconds.

Because the facts, taken in a light most favorable to Orem, show

that Deputy Rephann inflicted unnecessary and wanton pain and suf-

fering, Orem has alleged a violation of her Fourteenth Amendment

right to be free from excessive force.

IV.

Having found that Deputy Rephann’s conduct violated Orem’s

constitutional right, we turn to whether that constitutional right was

"clearly established" at the time of the violation. In 2005, it was

clearly established that an arrestee or pretrial detainee is protected

from the use of excessive force. See, e.g., Bell v. Wolfish, 441 U.S.

520 (1979). Deputy Rephann properly concedes this point and, there-

fore, no further discussion is necessary on this matter. Deputy

Rephann, however, asserts that he is entitled to qualified immunity

because his conduct was objectively reasonable.

"Because ‘police officers are often forced to make split-second

judgments — in circumstance that are tense, uncertain, and rapidly

evolving,’ the facts must be evaluated from the perspective of a rea-

sonable officer at the scene, and the use of hindsight must be

avoided." Waterman v. Batton, 393 F.3d 471, 476-77 (4th Cir. 2005)

(quoting Graham v. Connor, 490 U.S. 386, 397 (1989) (internal cita-

tions omitted). Hence, qualified immunity will shield Deputy

Rephann from suit if "a reasonable officer" could have believed taser-

ing Orem was lawful, in light of the clearly established law and the

10 OREM v. REPHANN

information Deputy Rephann possessed at the time. Hunter v. Bryant,

502 U.S. 224, 227 (1991). In this case, we need not use hindsight or

conjure up a pseudo-"reasonable officer" because, two other presum-

ably "reasonable officers" were at the scene.

And, indeed, Deputy Boyles, who was transporting Orem and bear-

ing the brunt of her rage, did not request assistance and saw fit to first

try to secure her hobble restraints — not use electric shock to restore

order. The other officer, who stood directly behind Deputy Rephann,

did not attempt to restrain Orem or assist Deputy Boyles in tightening

the hobbling device — let alone use a taser gun. Notwithstanding the

qualified immunity standard’s ample room for mistaken judgments,

there is evidence bearing heavily against Deputy Rephann that, in

these circumstances, the taser gun was not used for a legitimate pur-

pose; such as protecting the officers, protecting Orem, or preventing

Orem’s escape. Id. at 229 ("The qualified immunity standard ‘gives

ample room for mistaken judgments’ by protecting ‘all but the plainly

incompetent or those who knowingly violate the law.’" (quoting Mal-

ley v. Briggs, 475 U.S. 335, 341 (1986)). Rather, Deputy Rephann

used the taser to punish or intimidate Orem — a use that is not objec-

tively reasonable, is contrary to clearly established law, and not pro-

tected by qualified immunity.

V.

For the foregoing reasons, the judgment of the district court is

affirmed.5

AFFIRMED

SHEDD, Circuit Judge, concurring:

I concur in the majority’s decision to affirm the denial of Deputy

Rephann’s summary judgment motion and his subsequent "Rule

52(b)" motion. I write separately to explain my rationale.

5

The district court’s denial of Deputy Rephann’s Motion pursuant to

Fed. R. Civ. P. 52(b) requesting additional findings of fact and asking the

district court to amend or correct its summary judgment ruling is also

affirmed.

OREM v. REPHANN 11

Throughout this litigation, the parties have pled and argued this

case as one involving a Fourth Amendment excessive force claim.

Even after the district court noted the potential applicability of the

Fourteenth Amendment in its summary judgment order, and after we

requested supplemental briefing and specifically cited circuit prece-

dent that indicates the applicability of the Fourteenth Amendment, see

Riley v. Dorton, 115 F.3d 1159, 1164 (4th Cir. 1997) (en banc) (hold-

ing that "the Fourth Amendment does not embrace a theory of ‘con-

tinuing seizure’ and does not extend to the alleged mistreatment of

arrestees or pretrial detainees in custody"), the parties continued to

maintain that the Fourth Amendment applies. However, as the major-

ity correctly holds, this is unquestionably a Fourteenth Amendment

case because at the time Deputy Rephann used his taser on Ms. Orem,

she had been placed under arrest; consequently, the act of seizing her

was complete, see Scott v. Harris, 127 S. Ct. 1769, 1776 (2007) (a

"‘Fourth Amendment seizure [occurs] . . . when there is a governmen-

tal termination of freedom of movement through means intentionally

applied’" (quoting Brower v. Cty. of Inyo, 489 U.S. 593, 596-97

(1989)), and the Fourth Amendment was no longer applicable, see

Robles v. Prince George’s Cty., Md., 302 F.3d 262, 268 (4th Cir.

2002) ("Once the single act of detaining an individual has been

accomplished, the [Fourth] Amendment ceases to apply."). Despite

the parties’ refusal to recognize this rather obvious conclusion, we are

not bound by their erroneous characterization of the law, see Kamen

v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991) ("When an issue

or claim is properly before the court, the court is not limited to the

particular legal theories advanced by the parties, but rather retains the

independent power to identify and apply the proper construction of

governing law."), and we may affirm on any ground appearing in the

record, including theories not relied upon by the district court, Scott

v. United States, 328 F.3d 132, 137 (4th Cir. 2003).

Therefore, proceeding to review the district court’s order denying

Deputy Rephann’s summary judgment motion under the Fourteenth

Amendment, we must first consider whether Ms. Orem has met her

burden of presenting sufficient evidence in the record to establish a

Fourteenth Amendment violation. See Henry v. Purnell, 501 F.3d

374, 377-78 (4th Cir. 2007) (explaining the parties’ respective bur-

dens in a qualified immunity analysis). In order to succeed on a Four-

teenth Amendment excessive force claim, Ms. Orem must show that

12 OREM v. REPHANN

Deputy Rephann "‘inflicted unnecessary and wanton pain and suffer-

ing.’ The proper inquiry is whether the force applied was ‘in a good

faith effort to maintain or restore discipline or maliciously and sadisti-

cally for the very purpose of causing harm.’" Taylor v. McDuffie, 155

F.3d 479, 483 (4th Cir. 1998) (quoting Whitley v. Albers, 475 U.S.

312, 320-21 (1986)).

As the majority explains, the record establishes that Ms. Orem’s

reprehensible conduct while riding in Deputy Boyles’ patrol car war-

ranted some use of force to restrain her. Ms. Orem does not contest

this fact and, in light of the videotape of this incident, we would not

be required to accept her version even if she did so. See Harris, 127

S. Ct. at 1776 (holding on summary judgment that when the non-

moving party’s version of events is "so utterly discredited by [a

videotape] that no reasonable jury could have believed him," then the

court should not rely on "such visible fiction" but instead should view

the facts "in the light depicted by the videotape"). Generally, we have

recognized in the Fourteenth Amendment context that law enforce-

ment officers must be accorded "due deference" when it comes to

their attempts to restrain disorderly detainees by force. See, e.g.,

Grayson v. Peed, 195 F.3d 692, 696-97 (4th Cir. 1999). Notwith-

standing this general principle, I believe that a sufficient jury question

exists in this record and based on the arguments presented concerning

whether Deputy Rephann used his taser in a good-faith effort to main-

tain or restore discipline, or maliciously and sadistically for the very

purpose of causing harm. I base my conclusion on the following facts:

(1) Ms. Orem, while unruly, was mostly restrained in the back of the

patrol car; (2) Deputy Rephann used the taser immediately in

response to Ms. Orem’s use of profanity toward him; (3) Deputy

Rephann’s taser twice made contact with Ms. Orem, and both times

the contact was in a sensitive body area (i.e., just below her breast and

on her thigh); and (4) Deputy Rephann told Ms. Orem that she needed

to "respect" the officers immediately after he used his taser.

In addition to the foregoing, Ms. Orem must also show that her

injury resulting from Deputy Rephann’s infliction of force is more

than de minimis, or that the force used is "‘of a sort repugnant to the

conscience of mankind . . . or the pain itself [is] such that it can prop-

erly be said to constitute more than de minimis injury.’" Carr v.

Deeds, 453 F.3d 593, 605-06 (4th Cir. 2006) (quoting Norman v. Tay-

OREM v. REPHANN 13

lor, 25 F.3d 1259, 1263 n.4 (4th Cir. 1994) (en banc)). In my view,

the district court correctly concluded that Ms. Orem met her summary

judgment burden based on this record.1 Specifically, she has testified

that Deputy Rephann’s use of the taser left a scar on her thigh. More-

over, the pain associated with being shocked twice by a taser in sensi-

tive body areas (as she was) seems to me to fall within the level that

we have recognized constitutes more than de minimis injury regard-

less of whether Ms. Orem has any enduring injury.

Because Ms. Orem has presented sufficient evidence to create a

jury question as to whether Deputy Rephann violated her constitu-

tional right, the burden shifts to him to establish his entitlement to

qualified immunity. See Henry, 501 F.3d at 378. In this regard, he

must establish that it would not have been clear to a reasonable officer

that his conduct was unlawful in the situation he confronted. Id. at

377. I agree with the majority that Deputy Rephann has failed to meet

his burden.

In short, for the foregoing reasons, I agree with the majority that

the district court’s order denying Deputy Rephann’s summary judg-

ment motion should be affirmed. Not every use of a taser will give

rise to a constitutional violation, and Deputy Rephann may very well

be able at trial to convince a jury that his conduct in this instance was

lawful, but he is not entitled to summary judgment on this record.2

1

Although the district court analyzed this case under the Fourth

Amendment, it concluded that Ms. Orem’s injuries are more than de

minimis.

2

After the district court orally denied Deputy Rephann’s summary

judgment motion, he unsuccessfully moved under Fed. R. Civ. P. 52(b)

for the district court to make additional findings and change its ruling,

and he apparently submitted for the first time several affidavits (includ-

ing his own) with that motion. Rule 52(b) is a trial rule that is not appli-

cable in a summary judgment proceeding; however, a motion

erroneously filed under Rule 52(b) may be treated as a Rule 59(e) motion

to alter or amend. See St. Paul Mercury Ins. Co. v. Fair Grounds Corp.,

123 F.3d 336, 339 (5th Cir. 1997). We review for abuse of discretion a

district court’s decision on a Rule 59(e) motion. Pacific Ins. Co. v. Amer-

ican Nat’l Fire Ins. Co., 148 F.3d 396, 402 (4th Cir. 1998). "Although

Rule 59(e) does not itself provide a standard under which a district court

14 OREM v. REPHANN

may grant a motion to alter or amend a judgment, we have . . . recog-

nized that there are three grounds for amending an earlier judgment: (1)

to accommodate an intervening change in controlling law; (2) to account

for new evidence not available at trial; or (3) to correct a clear error of

law or prevent manifest injustice." Id. at 403. I find that Deputy Rephann

has failed to demonstrate that the district court abused its discretion in

denying this motion.