Peacock v. Tucker et al

Filing 129

ORDER denying 128 Motion for Rehearing. Signed by Judge John E. Steele on 11/18/2014. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JAMES C. PEACOCK,
Plaintiff,
v.

Case No: 2:12-cv-63-FtM-29DNF

NICOLAS O. CABREO-MUNIZ,
Defendant.
ORDER
This matter comes before the Court upon Plaintiff's motion
for rehearing (Doc. 128, filed October 31, 2014). In the motion,
Plaintiff argues that this Court erred when it denied his motion
for leave to appeal in forma pauperis and assessed a $505.00
appellate filing and docketing fees. Id.

The Court construes the

motion as a request for reconsideration made pursuant to Rule 59
of the Federal Rules of Civil Procedure. 1

For the reasons set

forth in this Order, Plaintiff's motion is denied.
The decision to grant a motion for reconsideration is within
the sound discretion of the trial court and will only be granted

1

Rule 59(e) provides for motions to alter or amend final
judgments and mandates that such motions Amust be filed no later
than 28 days after entry of the judgment.@ Fed. R. Civ. P. 59(e).
Because Plaintiff filed this motion within the 28 day window, it
is construed as a motion for reconsideration under Federal Rule of
Civil Procedure 59(e). See Mahone v. Ray, 326 F.3d 1176, 1177-78
n.1 (11th Cir. 2003) (confirming the propriety of distinguishing
Rule 59(e) motions from Rule 60(b) motions based on whether the
motion is filed inside or outside of the Rule 59(b) filing period).

to correct an abuse of discretion. Region 8 Forest Serv. Timber
Purchasers Council v. Alcock, 993 F.2d 800, 806 (11th Cir. 1993).
There

are

three

bases

for

reconsidering

an

order:

(1)

an

intervening change in controlling law; (2) the availability of new
evidence; and (3) the need to correct clear error or prevent
manifest injustice. Sussman v. Salem, Saxon & Nielsen, P.A., 153
F.R.D. 689, 694 (M.D. Fla. 1994) (citations omitted); Lamar Adver.
of Mobile, Inc. v. City of Lakeland, 189 F.R.D. 480, 489 (M.D.
Fla. 1999).
Furthermore, a motion for reconsideration does not provide an
opportunity to simply reargue, or argue for the first time, an
issue the Court has already determined.
intended

as

mere

first

drafts,

Court opinions are “not

subject

to

revision

and

reconsideration at a litigant's pleasure.” Quaker Alloy Casting
Co. v. Gulfco Indus., Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1988).
The reconsideration of a previous order is an “extraordinary
remedy” and “must set forth facts or law of a strongly convincing
nature to induce the court to reverse its prior decision.” Ludwig
v. Liberty Mutual Fire Ins. Co., Case No. 8:03-cv-2378-T-17-MAP,
2005 WL 1053691 at *3 (M.D. Fla. Mar. 30, 2005) (citing Lamar, 189
F.R.D. at 489).
The Court has reviewed Plaintiff's motion and determines that
it is without merit.
pointed

to

a

Plaintiff does not identify new evidence,

change

in

controlling

- 2 -

law,

or

shown

that

reconsideration

is

needed

manifest injustice.

to

correct

clear

error

or

prevent

Rather, Plaintiff appears to believe that,

because he filed a prisoner consent form for civil rights appeals,
he should be completely excused from paying his $505.00 appellate
filing fee (Doc. 128 at ¶ 6).
Pursuant

to

28

U.S.C.

§

1915(b)(1),

“[n]otwithstanding

subsection (a), if a prisoner brings a civil action or files an
appeal in forma pauperis, the prisoner shall be required to pay
the full amount of a filing fee.” (emphasis added).

Because

Plaintiff is a prisoner, under 28 U.S.C. § 1915(b)(1), this Court
does not have authority to excuse him from paying his appellate
filing fee. Therefore, Plaintiff became obligated to pay the full
appellate filing fee at the time he filed his notice of appeal
(Doc.

116).

Plaintiff

acknowledged

his

acceptance

of

this

obligation when he signed the prisoner consent form which states
in paragraph one that, regardless of the Court’s disposition of
his case (including dismissal), Plaintiff is “still obligated to
pay the entire $505.00 filing fee.” (Doc. 124 at 1). See Lucien v.
DeTella, 141 F.3d 773, 775 (7th Cir. 1998) (“All § 1915 has ever done
is excuse pre-payment of the docket fees; a litigant remains liable
for them, and for other costs, although poverty may make collection
impossible.”); Strickland v. Rankin Cnty. Corr. Facility, 105 F.3d
972, 975 n.2 (5th Cir. 1997) (noting that “the purpose of the [PLRA]

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was

to

make

prisoners

feel

the

deterrent

effect

of

filing

fee

obligations before burdening the court with frivolous appeals”).

The Court will not reconsider its Order denying Plaintiff
leave to proceed in forma pauperis on appeal and assessing $505.00
in appellate filing and docketing fees. Accordingly, Plaintiff's
Motion for Rehearing (Doc. 128) is DENIED.
DONE and ORDERED in Fort Myers, Florida on this
of November, 2014.

SA: lg
Copies: All Parties of Record

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18th

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