United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
Webster United States Magistrate Judge
matter is before the Court on Plaintiff Chris Fordham's
("Plaintiff) motion entitled, "Plaintiffs
contemporaneously submitted motion to alter/amend, (per Rule
59) vacate/aside (per Rule 60) the USDC-DJ's 3/22/2017
Order granting summary judgment to Defendants C. Ransom, N.
Leakez." (Docket Entry 87.) Also before the Court is
Plaintiffs motion entitled, "Plaintiffs conditional
permissive request for 60-day extension to file a
supplemental rule 59 & 60 motion [or] appropriate
permissive notice/request to file an untimely appeal"
(Docket Entry 94) and Plaintiffs motion entitled,
"Plaintiffs affidavit styled unconditional request for
permission to file and filing of late/timely notice of
appeal." (Docket Entry 95.) All motions are ripe for
disposition. For the reasons that follow, it is recommended
that Plaintiffs motion to alter or amend be denied, and
Plaintiffs request to file an untimely notice of appeal be
denied as moot.
a pro se prisoner, filed this action pursuant to 42 U.S.C.
§ 1983 against Defendants for their alleged failure to
protect Plaintiff from an assault by other inmates and
failure to grant his request for protective custody. (See
generally Corrected Compl., Docket Entry
Discovery commenced in this matter in February 2016. (Docket
Entry 56.) Dispositive motions were due no later than
September 8, 2016. (Id.) Prior to the discovery
deadline, Plaintiff filed a motion seeking, inter alia, an
extension of time to respond to any dispositive motions.
(Docket Entry 59.) On September 8, 2016, Defendants Gary
Crutchfield, Neal Leakez, and Lisa Starr, and Chandra Ransom
moved for judgment on the pleadings, or alternatively,
summary judgment. (Docket Entry 68.) Shortly thereafter,
Plaintiff filed a document that was docketed as a response to
Defendants' motion. (Docket Entry 74.)On February 3,
2017, the Court entered an order granting in part Plaintiffs
extension motion and allowing him additional time to file a
response to Defendants' summary judgment motion. (Text
Order dated 02/03/2017.) Plaintiff subsequently submitted two
more filings, neither of which were responses to
Defendants' motion. (Docket Entries 75-76; see
also Docket Entry 77 at 1 n.l.) On March 22, 2017, the
Court entered an order granting Defendants Crutchfield,
Leakez, Ransom, and Starr's motion for judgment on the
pleadings, or in the alternative, for summary judgment.
(Docket Entry 77; see also Docket Entry 78.)
days after judgment was entered in this action, Plaintiff
filed several additional documents alleging various
misconduct by prison officials, including destroying his
property and assaulting him. pocket Entries 79-86.) On April
10, 2017, Plaintiff filed the pending motion to alter, amend
or vacate judgment, along with an affidavit and several
additional attachments arguing denial of access to the Court
and destruction of his property. (Docket Entries 87-93.) On
August 18, 2017, Plaintiff filed the pending motion seeking
additional time to "file a supplemental Rule 59 & 60
.motion." (Docket Entry 94.) Soon thereafter, Plaintiff
filed the last pending motion seeking permission to file a
late notice of appeal. (Docket Entry 95.)
Motion to Alter, Amend or Vacate
seeks to alter, amend or vacate the Court's previous
judgment in favor of Defendants Crutchfield, Leakez, Ransom,
and Starr. (Seegenerally, Docket Entry 87.)
Plaintiff filed this motion on April 10, 2017, within twenty
eight days of this Court's entry of judgment on March 22,
2017. Thus, the motion will be considered pursuant to Federal
Rule of Civil Procedure Rule 59(e). "[C]ourts
interpreting Rule 59(e) have recognized 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."
Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir.
1993). It is well settled that "Rule 59(e) motions may
not be used to make arguments that could have been made
before the judgment was entered." Hill v.
Braxton, 277 F.3d 701, 708 (4th Cir. 2002) (internal
citations omitted). Reconsideration of a judgment is "an
extraordinary remedy which should be used sparingly."
Pac. Ins. Co. v. Am. Nat. Fire Ins. Co., 148 F.3d
396, 403 (4th Cir. 1998) (internal citations and quotations
review of Plaintiffs motion and attachments indicate that
none of the narrow circumstances above are present to warrant
granting the motion. In Plaintiffs motion, he essentially
disagrees with the Court's previous rulings, specifically
the denial of injunctive relief, the dismissal without
prejudice as to the unserved Defendants, and the application
of summary judgment in this matter. To some extent,
Plaintiffs arguments "seek to cover the very same
issues . . . briefed in previous filings and considered by
[the] Court in reaching [its previous] conclusion[s.]"
Taylor v. Hinkle, No. 3:08CV306, 2010 WL 114379, at
*2 (E.D. Va. Jan. 11, 2010) (unpublished). "The Fourth
Circuit has emphasized that [a] mere disagreement with the
court's ruling does not warrant a Rule 59(e)
motion." Abebe v. Moring, No. CV 5:12-187- MBS,
2013 WL 12098810, at *2 (D.S.C. Sept. 25, 2013) (citation
omitted), affd, 557 Fed.Appx. 227 (4th Cir. 2014).
Moreover, Plaintiff has not presented an argument as to any
clear error or to prevent any manifest injustice. Frasier
v. N. Carolina, No. 5:13-HC-2010-F, 2015 WL 11070883, at
*1 (E.D. N.C. Mar. 2, 2015), appeal dismissed, 612
Fed.Appx. 193 (4th Cir. 2015) ("Where a party seeks
reconsideration on the basis of manifest error, die earlier
decision cannot be "just maybe or probably wrong; it
must. . . strike us as wrong with the force of a five-week
old, unrefrigerated dead fish.") (internal citations and
quotations omitted). Plaintiff partly attempts to challenge
the evidence attached to Defendants' summary judgment
motion, but this challenge is improper because Plaintiff
could have made such arguments prior to the entering of
judgment. Hill, 277 F.3d at 708. Because Plaintiff
fails to present any argument warranting relief under Rule
59(e), his motion should be denied.
Notice of Appeal
has also filed two additional post-judgment motions in this
matter. In the first motion, Plaintiff seeks an extension of
time to file a supplemental Rule 59 motion and Rule 60
motion. (Docket Entry 94.) Plaintiff states that if this case
is not closed, the Court should grant his request to
supplement; but "[i]f closed, treat this document as a
timely Notice of Appeal." (Docket Entry 94.) The Court
recommends denial of said motion to the extent Plaintiff
seeks to the supplement his Rule 59(e) motion. Again,
Plaintiff has not set for grounds warranting any relief under
Rule 59(e). To the extent Plaintiff requests that this
document be considered a notice of appeal, the Court should
construe the document as such. "[I]f a party files a
timely motion in the district court to alter or
amend the judgment under Rule 59(e), the time to file a
notice of appeal runs from the entry of the order disposing
of the Rule 59(e) motion." Panhorst v. United
States, 241 F.3d 367, 370 (4th Cir. 2001) (citing Fed.
R. App. P. 4(a)(4)(A)) (emphasis in original). Plaintiff
filed the notice of appeal while the Rule 59(e) motion was
still pending, thus "the notice becomes effective to
appeal a judgment or order, in whole or in part, when the
order disposing of the [Rule 59(e)] motion is entered."
Fed. R. App. P. 4(a)(4)(B)(i). Here, Plaintiffs notice of
appeal will become effective on the date of the Court's
ruling upon the Recommendation herein.
last post-judgment motion before the Court is Plaintiffs
motion seeking permission to file a late notice of appeal.
(Docket Entry 95.) Having concluded that Plaintiffs notice of
appeal will become effective on the date of the Court's
ruling upon the Recommendation herein, Plaintiff does not
need an extension of time to file a notice of appeal. Thus,
this motion should be denied as moot.
reasons stated herein, IT IS RECOMMENDED
that Plaintiffs motion to alter or amend pursuant to ...