McDowell Bey v. Edwards et al

Filing 16

ORDER denying 14 Motion for reconsideration; denying 15 Motion for Clerk's asisstance. Signed by Judge John E. Steele on 10/15/2012. (RKR) Modified on 10/15/2012 to edit docket text (SLU).

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
COREY A MCDOWELL BEY,
Plaintiff,
vs.

Case No.

2:12-cv-330-FtM-29SPC

CAPT. EDWARDS, SGT. MORRETTE, and
FOUR
(4)
UNKNOWN
OFFICERS
OF
CHARLOTTE CORRECTIONAL INSTITUTION
OF FLORIDA,
Defendants.
___________________________________
ORDER
This matter comes before the Court upon review of Plaintiff’s
“motion for reconsideration” (Doc. #14) and “motion for clerk’s
assistance” (Doc. #15), filed September 6, 2012.
Based on the time frame in which Petitioner filed his motion
for reconsideration, the Court construes the Motion as filed
pursuant to Fed. R. Civ. P. 60.

Federal Rule of Civil Procedure

60(b) permits a party to seek relief from a final judgment under
specific circumstances such as: “mistake, inadvertence, surprise,
or excusable neglect.”

Fed. R. Civ. P. 60(b)(1).

The standard

under section (b)(1) for excusable neglect is a demanding one, and
routine lack of carelessness or a party's misunderstanding of the
consequences of his actions does not suffice.

Federal Civil Rules

Handbook, Rule 60, Reason 1 at 1185 (2011).

The four factors to

consider in determining whether excusable neglect is appropriate
include:

“the danger of prejudice to the opposing party, the

length of the delay and its potential impact on the judicial
proceedings, the reason for the delay, including whether it was
within the reasonable control of the movant, and whether the movant
acted in good faith.”

Connecticut State Dental Ass'n v. Anthem

Health Plans, Inc., 591 F.3d 1337, 1355 (11th Cir. 2009)(citing
Pioneer Inv. Servs. Co. v. Brunswick Assocs., L.P., 507 U.S. 380,
395 (1993)).
Rule 60 also provides for a catchall provision that permits
the Court to grant relief from a final judgment “for any other
reasons that justifies relief.”

Fed. R. Civ. P. 60(b)(6).

Relief

under this provision is “exceedingly rare” and “does not offer an
unsuccessful

litigant

an

opportunity

'to

take

a

mulligan.'”

Federal Rules Civil Handbook, Rule 60, Reason 6 (quoting Kramer v.
Gates, 481 F.3d 788, 792 (D.C. Cir. 2007)).

“Even then, whether to

grant the requested relief is a matter for the district court's
sound discretion.”

Cano v. Baker, 435 F.3d 1337, 1342 (11th Cir.

2006)(quotation and alteration marks omitted).
Plaintiff seeks reconsideration of the Court’s July 25, 2012
Order dismissing Plaintiff’s case without prejudice pursuant to
Local Rule 1.03(e)(M.D. Fla. 2009) and for Plaintiff’s failure to
comply with the Court’s June 20, 2012 Order.

In the motion for

reconsideration, Plaintiff states that he filed copies of his

-2-

prisoner account information as soon as he received the copies.
See Doc. #14 at 1.

Plaintiff states he did not file a motion for

an extension of time to comply with the Court’s order as a result
of “excusable neglect” because he has four other pending § 1983
cases.

Id.

Plaintiff also claims that the institution denied him

mailing supplies since July 11, 2012.

Id. at 2.

By separate

motion, Plaintiff explains that he did not file a copy of his 6month prisoner account statement because he has not received a copy
from the Department of Corrections.

Doc. #15 at 1-2.

Plaintiff

requests that the Clerk of Court gather a copy of his prisoner
account statement on his behalf.

Id. at 2.

The Court finds Plaintiff’s motion for reconsideration lacks
merit.

On June 20, 2012, the Court entered an Order directing

Plaintiff to either pay the requisite $350.00 filing fee, or file
a motion for leave to proceed in forma pauperis.

Plaintiff

received the Court’s Order, but failed to comply with the Order in
its entirety.

Instead, Plaintiff mailed other pleadings to the

Court including an emergency motion on July 5, 2012, and a motion
for reconsideration regarding a different matter on July 23, 2012.
See

docket.

Thus,

Plaintiff

clearly

supplies.
ACCORDINGLY, it is hereby
ORDERED:

-3-

had

access

to

mailing

1.

Plaintiff’s “motion for reconsideration” (Doc. #14) is

DENIED.
2.

Plaintiff’s “motion for clerk’s assistance” (Doc. #15) is

DENIED.
DONE AND ORDERED at Fort Myers, Florida, on this
of October, 2012.

SA: alj
Copies: All Parties of Record

-4-

15th

day