USCA11 Case: 20-11686 Date Filed: 12/17/2020 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-11686
Non-Argument Calendar
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D.C. Docket No. 1:19-cv-01439-LMM
CHRISTOPHER LENARD PUGH,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
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(December 17, 2020)
Before MARTIN, BRANCH, and ED CARNES, Circuit Judges.
PER CURIAM:
USCA11 Case: 20-11686 Date Filed: 12/17/2020 Page: 2 of 3
Christopher Pugh, a Georgia state prisoner acting pro se, believes that his
May 2015 arrest by United States Marshals was unlawful. In 2017 he filed a
complaint against, among others, the United States, alleging that the 2015 arrest
was unlawful and raising claims under the Federal Tort Claims Act, 28 U.S.C.
§ 1346. That complaint was dismissed.
Pugh filed another complaint in 2019, also against the United States, also
under the Federal Tort Claims Act, and also based on the arrest. A magistrate
judge issued a report that recommended the 2019 complaint be dismissed because
it was barred by res judicata. Pugh objected to the report, contending that res
judicata did not bar his new case. He argued that his new case was not the same
cause of action as the old one because it was based on a different theory of
recovery and relied on different evidence. The district court rejected Pugh’s
argument and adopted the magistrate judge’s report. It ruled that Pugh’s new case
and his old one were both based on the 2015 arrest, so they were the same cause of
action.
Pugh filed a motion for reconsideration. His motion raised a new argument
that res judicata did not apply because his previous complaint had been dismissed
without prejudice. The court denied the motion. In doing so, it noted that the
motion for reconsideration was the first time Pugh had raised that argument and
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that, in any event, the claims in his previous complaint had actually been dismissed
with prejudice.
Pugh appeals the denial of his motion for reconsideration, which we review
only for an abuse of discretion. Lockard v. Equifax, Inc.,
163 F.3d 1259, 1267
(11th Cir. 1998). A party cannot use a motion for reconsideration “to relitigate old
matters, raise argument or present evidence that could have been raised prior to the
entry of judgment.” Wilchombe v. TeeVee Toons, Inc.,
555 F.3d 949, 957 (11th
Cir. 2009) (quotation marks omitted). That “includes new arguments that were
previously available, but not pressed.”
Id. (quotation marks omitted). And “we
can affirm on any ground that finds support in the record.” Big Top Koolers, Inc.
v. Circus-Man Snacks, Inc.,
528 F.3d 839, 844 (11th Cir. 2008).
The district court did not abuse its discretion in denying Pugh’s motion for
reconsideration, which was based solely on this argument that his previous case
was dismissed without prejudice. But he did not make that argument when he
objected to the magistrate judge’s report, or at any other time before the court
entered judgment, even though the argument was available to him and he could
have done so. “[I]t was well within the district court’s sound discretion to deny the
motion for reconsideration.”
Wilchombe, 555 F.3d at 957.
AFFIRMED.
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