Stanberry v. Allen et al

Filing 48

ORDER, Plf's 40 Motion to Alter Judgment, construed by the court as a Rule 59(e) motion to amend judgment is DENIED as set out. Plf's 38 Motion for Extension of Time to Appeal is DENIED AS MOOT, & Plf's 38 Motion for Order dir ecting the return of certain legal materials, construed by the court as a Rule 7(b) motion, is DENIED as set out. Plf's 44 Second Motion to Appoint Counsel is DENIED as set out, as is his 45 Motion for Leave to Appeal in forma pauperis. The court also certifies that Plf's appeal is not taken in good faith as set out. Signed by Judge Callie V. S. Granade on 11/8/2012. (copy mailed to Plf on 11/9/12) (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DERRICK M. STANBERRY, #209119,
Plaintiff,
v.
RICHARD ALLEN, et. al.,
Defendants.

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) CASE NO. 1:11-cv-124-CG-B
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ORDER ON PLAINTIFF’S AMENDED MOTION TO ALTER
JUDGMENT AND/OR MAKE ADDITIONAL FINDINGS OF FACT
This matter is before the court pursuant to several motions filed by the
plaintiff, Derrick M. Stanberry (“Stanberry”). These pro se motions include
an amended motion to alter judgment and/or make additional findings of fact
(Doc. 40); a motion for a 30-day extension of time and a request for a court
order directing prison officials to return certain papers and self-help
litigation manuals to Stanberry (Doc. 38); a motion to appoint counsel (Doc.
44); and a motion for leave to appeal in forma pauperis (Doc. 45). The court
addresses each motion separately, below.
I.

AMENDED MOTION TO ALTER JUDGMENT (DOC. 40).
As an initial matter, the court notes that Stanberry’s amended motion

to alter judgment (the “amended motion”) is brought pursuant to Federal
Rule of Civil Procedure 52(b). However, the judgment which he seeks to alter
was entered on the defendants’ summary judgment motion. See Docs. 34 and
36). “[A] Rule 52(b) motion to amend judgment is improper where the district

court enters an order on a motion for summary judgment because the
findings of fact on a summary judgment motion are not findings of fact in the
strict sense that the trial court has weighed evidence and resolved disputed
factual issues.” Silva v. Potter, 2006 WL 3219232 at *2 (S.D. Fla. 2006)
(citations and quotation omitted). Therefore, because the court construes pro
se filings liberally, Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir.1990),
and because Stanberry filed his motion within the requisite 28 day period,
the court construes his motion as a motion to alter judgment pursuant to
Fed.R.Civ.P. 59(e).
Alteration or amendment of “a judgment pursuant to Rule 59(e) is
‘committed to the sound discretion of the district judge.’ ” Mincey v. Head,
206 F.3d 1106, 1137 (11th Cir. 2000) (quoting Am. Home Assurance Co. v.
Glenn Estess & Assocs., Inc., 763 F.2d 1237, 1238–39 (11th Cir. 1985)).
Generally, courts have recognized three grounds which justify the
reconsideration of an order: (1) an intervening change in controlling law; (2)
the availability of new evidence; and (3) the need to correct clear error or
manifest injustice. Sussman v. Salem, Saxon & Nielsen, P.A., 153 F.R.D.
689, 694 (M.D. Fla. 1994). “[R]econsideration of a previous order is an
extraordinary remedy to be employed sparingly” in the interests of finality
and conservation of scarce judicial resources. Id. (emphasis added). “Rule
59(e) was not constructed “to give the moving party another ‘bite at the apple’
….” Mincey, 206 F.3d at 1137 n. 69. A party “cannot use a Rule 59(e) motion

to relitigate old matters, raise argument or present evidence that could have
been raised prior to the entry of judgment.” Michael Linet, Inc. v. Village of
Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005).
After reviewing Stanberry’s motion to alter judgment (Doc. 40), the
court finds no showing of any intervening change in controlling law, no
availability of new evidence, nor any showing of clear error or manifest
injustice. Rather, Stanberry’s argument covers well-trod territory from the
magistrate judge’s report and recommendation concerning his Eighth
Amendment deliberate indifference claim and allegations that prison officials
did not take reasonable steps to ensure his safety. Accordingly, his motion is
DENIED.
II.

PLAINTIFF’S REQUEST FOR A COURT ORDER AND MOTION
FOR EXTENSION OF TIME
Stanberry also filed a motion requesting a 30-day extension of time to

prepare his appeal of the court’s September 14, 2012, order adopting the
magistrate judge’s report and recommendation. (Doc. 38). As part of the
same motion, Stanberry also requests that the court enter an order requiring
prison officials to return certain “legal work, self-help litigation manuals and
writing material” to enable Stanberry to appeal the court’s order. Id.
With regard to Stanberry’s motion for an extension of time, the court
notes that he already filed a notice of appeal on October 11, 2012. (Doc. 42).
Accordingly, his request for additional time is due to be DENIED as MOOT.

With regard to his request for an order directing prison officials to
return his various legal materials1, Stanberry makes the conclusory assertion
that prison officials took his “legal work, writing materials and self-help
litigation manuals to prevent Plaintiff from effectively appealing the courts
[sic] judgment.” (Doc. 38 at 1). He cites no statute or administrative rule to
establish that confiscation of these materials was improper. Furthermore,
the only evidence Stanberry provided was his attached request to prison
officials asking “what rule, regulation or policy you relied upon in refusing to
allow me to retain [the documents].” (Doc. 38 at 3). The response from
prison officials at the bottom of the page actually tends to show that the
confiscation conformed to administrative rules for the segregation unit where
Stanberry was housed at the time. See id. (“You were allowed to keep all
items that were listed on the wall stating what is permitted in Seg. I asked
you what legal work was current. Your only response was I need all of it.
Only current legal work is allow [sic].”). Accordingly, Stanberry’s motion is
DENIED.
III.

MOTION TO APPOINT COUNSEL
Stanberry previously filed a motion to appoint counsel on April 4, 2011

(Doc. 4), which the magistrate judge denied (Doc. 7) after finding that
Stanberry failed to show that exceptional circumstances existed which would
warrant the appointment of counsel. Id. (citing Kilgo v. Ricks, 983 F.2d 189,
The court construes Stanberry’s “request for court order” as a motion
brought in conformance with Fed.R.Civ.P. 7(b).
1

193 (11th Cir. 1993); Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999)).2
Stanberry has now filed a second motion to appoint counsel (Doc. 44), but he
has not alleged any new or additional facts beyond those considered by the
magistrate judge in his first request for counsel, i.e., Stanberry still does not
allege “facts and legal issues [which] are so novel or complex as to require the
assistance of a trained practitioner.” Kilgo at 193. Therefore, the motion is
hereby DENIED.
IV.

MOTION TO PROCEED IN FORMA PAUPERIS
Stanberry also filed a request to proceed in forma pauperis on appeal.

(Doc. 2). The magistrate judge previously granted Stanberry’s motion for
leave to proceed in forma pauperis in pursuing his claim before the district
court. (Doc. 3).
A determination whether petitioner's motion to proceed on appeal in
forma pauperis should be granted is informed by 28 U.S.C. § 1915 and
Fed.R.App.P. 24. See Ex parte Chayoon, 2007 WL 1099088, *2 (M.D. Fla.
2007) (citation omitted). Section 1915(a) provides, in pertinent part, that “an
appeal may not be taken in forma pauperis if the trial court certifies in
writing that it is not taken in good faith.” Id. (emphasis supplied). Rule
24(a) of the Federal Rules of Appellate Procedure further provides, in
relevant part that:

The magistrate judge noted that her denial of Stanberry’s motion was
subject to later reconsideration “if the circumstances of the case change.”
(Doc. 7 at 2).
2

A party who was permitted to proceed in forma pauperis
in the district-court action … may proceed on appeal in
forma pauperis without further authorization, unless: (A)
the district court—before or after the notice of appeal is
filed—certifies that the appeal is not taken in good faith
or finds that the party is not otherwise entitled to proceed
in forma pauperis and states in writing its reasons for the
certification or finding …
Id.
The test for whether an appeal is taken in good faith under § 1915(a) is
whether the litigant seeks appellate review of any issue that is not frivolous.
Chayoon, supra, at * 1 (citation omitted). “[A]n appellant's good faith
subjective motivation for appealing is not relevant, but rather [the
appropriate inquiry is] whether, objectively speaking, there is any nonfrivolous issue to be litigated on appeal.” Kirklewski v. Hamilton, 2008 WL
906011, * 1 (S.D. Ohio 2008); see also Coppedge v. United States, 369 U.S.
438, 445 (1962).
Here, the court notes that the magistrate judge has thoroughly
addressed the pertinent issues in this case in her report and
recommendation, and that, objectively speaking, that there is any nonfrivolous issue to be litigated on appeal. Accordingly, the court denies
Stanberry’s motion to proceed in forma pauperis on appeal and certifies in
writing, pursuant to 28 U.S.C. § 1915(a)(3) and Rule 24(a)(3)(A), that the
appeal is not taken in good faith.

V.

CONCLUSION
For the reasons discussed above, Stanberry’s motion to alter judgment,

construed by the court as a Rule 59(e) motion to amend judgment is hereby
DENIED. Also, Stanberry’s motion for a 30-day extension of time to appeal
(Doc. 38) is DENIED as MOOT. Stanberry’s request for a court order
directing the return of certain legal materials, construed by the court as a
Rule 7(b) motion (Doc. 38), is DENIED. Stanberry’s second motion to
appoint counsel (Doc. 44) is hereby DENIED, as is his motion for leave to
proceed in forma pauperis on appeal (Doc. 45). The court also certifies,
pursuant to 28 U.S.C. § 1915(a)(3) and Rule 24(a)(3)(A), that Stanberry’s
appeal is not taken in good faith.
DONE and ORDERED this 8th day of November 2012.

/s/ Callie V.S. Granade
UNITED STATES DISTRICT JUDGE