United States District Court, S.D. Georgia, Augusta Division
RANDAL HALL, CHIEF JUDGE
the Court is Plaintiff's motion to reopen this case.
(Doc. 23.) The Court DENIES Plaintiff's motion.
is a state inmate currently serving a 20-year sentence for
child molestation at the Coffee Correctional Facility in
Nicholls, Georgia. Plaintiff filed this § 1983 action in
July 2017 alleging that Defendant strip searched him in front
of other inmates and female guards. He sought $96, 000, 000
in damages. On October 13, 2017, the Magistrate Judge issued
a Report and Recommendation that the Court dismiss
Plaintiff's § 1983 action for failure to state a
claim upon which relief could be granted. On November 3,
2017, this Court adopted the Magistrate Judge's Report
and Recommendation. That same day, the Court served Plaintiff
with its adoption Order and Judgment. Plaintiff received
these documents three days later. He failed to file an
appeal. On February 6, 2018, he filed the instant motion to
reopen his case.
Plaintiff is pro-se, the Court liberally construes
his pleadings. Davilla v. Gladden, 777 F.3d 1198,
1208 n.5 (11th Cir. 2015). Accordingly, the Court finds
multiple ways in which to construe Plaintiff's motion.
Plaintiff's motion may be construed as one to reopen the
time in which he can file an appeal under Federal Rule of
Appellate Procedure 4. Rule 4(a)(6) states that:
[t]he district court may reopen the time to file an appeal
for a period of 14 days after the date when its order to
reopen is entered, but only if all the following conditions
(A) the court finds that the moving party did not receive
notice under Federal Rule of Civil Procedure 77(d) of the
entry of the judgment or order sought to be appealed within
21 days after entry;
(B) the motion is filed within 180 days after the judgment or
order is entered or within 14 days after the moving party
receives notice under Federal Rule of Civil Procedure 77(d)
of the entry, whichever is earlier; and
(C) the court finds that no party would be prejudiced
Fed. R. App. P. 4(a)(6). The Court, however, finds that
Plaintiff has failed to satisfy the requirements of Rule 4.
Plaintiff has averred that he received the order he sought to
appeal within three days of its entry, thus he has not
satisfied prong 4(a)(6)(A). Additionally, Plaintiff did not
move to reopen within 14 days of receiving notice of the
entry of judgment as required by prong 4(a)(6)(B). Thus,
Plaintiff has not met "all the conditions" of Rule
4, and the Court will not reopen the time for Plaintiff to
file an appeal.
s motion could also be construed as a motion to reconsider,
because Plaintiff attempts to challenge the correctness of
the Court's prior order. "[A] motion for
reconsideration should only be granted if there is (1) an
intervening change in controlling law; (2) newly discovered
evidence; or (3) the need to correct clear error or prevent
manifest injustice." Insured Deposits Conduit, LLC
v. Index Powered Fin. Servs., LLC, No. 07-22735, 2008 WL
5691349, at *l-2 (S.D. Fla. Mar. 14, 2008); accord Bryant
v. Jones, 696 F.Supp.2d 1313, 1320 (N.D.Ga. 2010);
Merrett v. Liberty Mut. Ins. Co., No. 3:10-cv-1195,
2013 WL 5289095, at *1 (M.D. Fla. Sept. 19, 2013). Because
reconsideration is an extraordinary remedy to be employed
sparingly, the movant must set forth facts or law of a
strongly convincing nature to induce the Court to reverse its
prior decision. Voter Verified, Inc. v. Election Sys.
& Software, Inc., No. 6:09-cv-1969, 2011 WL 3862450,
at *2 (M.D. Fla. Aug. 31, 2011). A motion for reconsideration
should not be used to present arguments already heard and
dismissed, or to offer new legal theories or evidence that a
party could have presented before the original decision.
S.E.C. v. Mannion, No. 1:10-cv-3374, 2013 WL
5999657, at *2 (N.D.Ga. Nov. 12, 2013) . Plaintiff has not
presented an intervening change in the law, new evidence, or
the need to correct clear error or manifest injustice. Thus,
to the extent the Plaintiff's request can be construed as
one for reconsideration, the Court finds that he has not
adequately met his burden.
another way to construe Plaintiffs motion is as a motion to
amend the judgment under Federal Rule of Civil Procedure 59.
Rule 59 states that "[a] motion to alter or amend a
judgment must be filed no later than 28 days after the entry
of the judgment."" Fed.R.Civ.P. 59(e). Plaintiff
failed to file his motion within 28 ...