Gilliam v. U.S. Department of Veterans Affairs

Filing 13

OPINION AND ORDER denying 12 Response construed as a motion for reconsideration. The deadline to file an amended motion and affidavit to proceed as an indigent based on a change in financial circumstances or pay the full filing fee is extended through January 27, 2017; and the deadline to file a Second Amended Complaint is extended through February 10, 2017. Signed by Judge John E. Steele on 12/29/2016. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
EDWARD LEE GILLIAM,
Plaintiff,
v.

Case No: 2:16-cv-255-FtM-99CM

U.S. DEPARTMENT OF VETERANS
AFFAIRS,
Defendant.
OPINION AND ORDER
This matter comes before the Court on plaintiff's Response to
Opinion and Order (Doc. #12) filed on December 27, 2016, and
construed as a motion for reconsideration.

For the reasons set

forth herein, the motion is denied.
On December 12, 2016, the Court issued an Opinion and Order
(Doc.

#11)

noting

that

plaintiff’s

Response

to:

Report

and

Recommendation (Doc. #10) was filed as an objection but that it
appeared to be a proposed Amended Complaint.

The Court found no

objections to the finding that plaintiff did not qualify to proceed
in forma pauperis, or the recommendation that the motion for
appointment of counsel be denied, and accepted the recommendations
of the magistrate judge.

The Court directed plaintiff to pay the

filing fee and to file a Second Amended Complaint.

A non-final order may be revised at any time before the entry
of a final judgment.

Fed. R. Civ. P. 54(b).

The decision to

grant a motion for reconsideration is within the sound discretion
of the trial court and will only be granted to correct an abuse of
discretion.

Region 8 Forest Serv. Timber Purchasers Council v.

Alcock, 993 F.2d 800, 806 (11th Cir. 1993).

“The courts have

delineated three major grounds justifying reconsideration of such
a decision: (1) an intervening change in controlling law; (2) the
availability of new evidence; (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).
Plaintiff seeks reconsideration arguing that objections were
contained in his Response to: Report and Recommendation (Doc. #10)
but not acknowledged or addressed by the Opinion and Order.

More

specifically, plaintiff refers to paragraph G, which provided that
plaintiff was now only making $11 an hour with a 36 hour workweek
and that he had depleted his retirement TSP account to pay attorney
fees and to sustain reduced living conditions.

(Doc. #10, p. 9.)

Plaintiff is proceeding unrepresented in this case, and a review
of the Motion to Proceed In Forma Pauperis and Financial Affidavit
(Doc. #2) reflects this same salary.

If plaintiff is asserting

that he now qualifies to proceed in forma pauperis based on a
change in financial circumstances, he may file an Affidavit to

- 2 -

that effect with a renewed motion before the deadline below to pay
the filing fee.

The motion for reconsideration based on paragraph

G is denied.
Plaintiff also refers to paragraph F providing that plaintiff
was

seeking

an

Administration

appointment
is

(Doc. #10, p. 9.)

committing

of

counsel

criminal

because

violations

the

Veteran’s

against

him.

A civil case must be “factually or legally so

complex as to warrant the assistance of counsel”, Holt v. Ford,
862 F.2d 850, 853 (11th Cir. 1989), and the Court finds that
plaintiff’s case fails to qualify for an appointment of counsel.
Therefore, reconsideration based on paragraph F is denied.

If

plaintiff believes that criminal charges are appropriate, he must
speak to the appropriate prosecutorial authorities as this is a
civil case only.
Accordingly, it is hereby
ORDERED:
1. Plaintiff's Response to Opinion and Order, construed as a
motion for reconsideration (Doc. #12) is DENIED.
2. The deadline to file an amended motion and affidavit to
proceed as an indigent based on a significant change in
financial circumstances, or to pay the full filing fee, is
extended through and including January 27, 2017.

- 3 -

3. The

deadline

to

file

a

Second

Amended

Complaint

that

incorporates all allegations and facts within a single
document is extended through and including February 10,
2017.
DONE and ORDERED at Fort Myers, Florida, this
of December, 2016.

Copies:
Counsel of Record

- 4 -

29th

day