Wright v. Langford et al
ORDER denying 58 Motion for Reconsideration ; granting in part and denying in part 59 Motion to Reopen Time to File Appeal. Ordered by Judge C. Ashley Royal on 7/20/12 (lap)
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF GEORGIA
WILLIE FRANK WRIGHT, JR.,
No. 5:10‐CV‐272 (CAR)
OFFICER LANGFORD, et al.
ORDER ON PLAINTIFF’S MOTION FOR RECONSIDERATION AND
MOTION TO SET ASIDE ORDER
Before the Court is pro se Plaintiff Willie Frank Wright, Jr.’s Motion for
Reconsideration [Doc. 58] and his Motion to Set Aside the Court’s Order Adopting the
Magistrate Judge’s Recommendation construed as a Motion to Reopen the Time to
Appeal [Doc. 59].1
Plaintiff filed the instant action against Defendants Officer Langford and Dr.
Theron Harrison alleging excessive force and deliberate indifference claims,
respectively, under 42 U.S.C. § 1983. As it presently stands, the Court has denied
As of the date of this Order, Defendant Langford has not filed a response, and the time to do
so has not yet expired. Nevertheless, in this instance, the Court finds a response to be unnecessary.
Defendant Harrison’s motion for summary judgment with respect to Plaintiff’s
deliberate indifference claim. This matter is presently scheduled for a pretrial
conference on July 26, 2012, and scheduled for trial in the fall. On March 29, 2012, the
Court adopted the Magistrate Judge’s Recommendation and granted summary
judgment as to Plaintiff’s excessive force claim against Defendant Harrison. Therein,
the Court concluded that Plaintiff failed to exhaust his administrative remedies under
the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a).
There is no indication in the record that Plaintiff was notified of the Court’s
March 29 Order until July 9 when the Court directed the Clerk of Court to mail
Plaintiff a copy. On July 17, less than ten days after mailing Plaintiff a copy of its
March 29 Order, Plaintiff filed the instant Motions. Plaintiff also filed a Notice of
Appeal of the Court’s March 29 Order.2 At present, the Court has not entered final
judgment in this action.
Motion for Reconsideration
Although the Court concludes that Plaintiff’s Notice of Appeal of the Court’s March 29 Order
is timely, the Court nevertheless finds, as discussed below, that the Court’s March 29 Order is not a final
and appealable order. Perez‐Priego v. Alachua Cnty. Clerk of Court, 148 F.3d 1272, 1273 (11th Cir. 1998)
(citations omitted). Accordingly Plaintiff’s filing of his Notice of Appeal did not confer jurisdiction over
the case from this Court to the United States Courts of Appeals for the Eleventh Circuit. See United
States v. Kapelushnik, 306 F.3d 1090, 1094 (11th Cir. 2002) (holding that “a premature notice of appeal
does not divest the district court of jurisdiction over the case”).
To begin, the Court concludes that Plaintiff did not receive proper notice of the
Court’s March 29 Order granting Officer Langford’s Motion for Summary Judgment.
The record is bereft of any indication that the Court’s Order was mailed to Plaintiff
until July 9. Less than ten days after the Court mailed Plaintiff a copy, Plaintiff filed
the instant Motion. Accordingly, the Court concludes that Plaintiff did not receive
proper notice of the Court’s Order pursuant to Rule 77(d) of the Federal Rules of Civil
Procedure, and thus Plaintiff’s Motion for Reconsideration is timely filed under Rule
The Court next considers the merits of Plaintiff’s Motion. Local Rule 7.6
provides that “[m]otions for reconsideration shall not be filed as a matter of routine
practice.” M.D. Ga. L.R. 7.6. Indeed, “it is well‐settled that motions for
reconsideration are disfavored and that relief under Rule 59(e) is an extraordinary
remedy to be employed sparingly.” Krstic v. Princess Cruise Lines, Ltd. (Corp.), 706 F.
Supp. 2d 1271, 1282 (S.D. Fla. 2010). Accordingly, Courts grant these motions in three
limited circumstances: (1) an intervening change in controlling law, (2) the availability
of new evidence, and (3) the need to correct clear error or manifest injustice. Id.; see
Fed. R. Civ. P. 59(e). Most importantly, “[a] motion for reconsideration does not
provide an opportunity to simply reargue the issue the Court has once determined.”
Pennamon v. United Bank, 2009 WL 2355816, at *1 (M.D. Ga. July 28, 2009) (quotation
After reviewing his Motion, it is apparent that Plaintiff merely reasserts and
substantiates several arguments he advanced (or could have advanced) in his
Objection to the Magistrate Judge’s Recommendation. Plaintiff does not provide the
Court with any intervening change in the law, new evidence, or the need to correct
clear error or manifest injustice. Accordingly, Plaintiff’s Motion for Reconsideration
[Doc. 58] is DENIED.
Motion to Reopen Time to Appeal
In his Motion, Plaintiff requests that the Court “either reenter the Order or
accept [his] notice of appeal as very timely.” [Doc. 59]. Pursuant to Rule 4 of the
Federal Rules of Appellate Procedure, the district court may reopen the time to file an
appeal for a period of fourteen days after the date when its order to reopen is entered
if: 1) a party did not receive proper notice of the order sought to be appealed within
twenty‐one days after entry; 2) the party files its motion with fourteen days after
receiving notice; and 3) no party would be prejudiced. Fed. R. App. 4(a)(6)(A). Here,
the Court concludes that Plaintiff did not receive proper notice of the Court’s March 29
Order and that no party would be prejudiced by reopening the time to appeal.
Accordingly, because Plaintiff filed his Notice within fourteen days after receiving
notice of the Court’s Order, the Court reopens the time to file an appeal.
Notwithstanding, Plaintiff’s Notice of Appeal is premature because the Court
has not entered final judgment as to Plaintiff’s claims against Officer Langford. See 28
U.S.C. § 1292. To the extent that Plaintiff requests that this Court certify his claim
against Officer Langford as a partial judgment for the purposes of appeal, the Court
concludes that such a request is unwarranted. Rule 54(b) of the Federal Rules of Civil
Procedure permits a district court to enter “final judgment as to one or more, but
fewer than all, claims or parties only if the court expressly determines that there is no
just reason for delay.” Fed. R. Civ. P. 54(b). Otherwise, partial adjudication of a case,
in terms of claims or parties, does not conclude the case, and the partial adjudication is
generally not appealable. Fed. R. Civ. P. 54(b); Lloyd Noland Foundation Inc. v. Tenet
Health Care Corp., 483 F.3d 773, 777 (11th Cir. 2007). Certification of a partial
judgment is only appropriate in “unusual case[s],” and district courts are “counseled
… to exercise the limited discretion afforded by Rule 54(b) conservatively.” Ebrahimi
v. City of Huntsville Bd. of Educ., 144 F.3d 162, 165 (11th Cir. 1997).
In deciding whether to certify a partial final judgment, “[a] district court must
follow a two‐step analysis.” Lloyd Noland Foundation, Inc., 483 F.3d at 777. “First,
the court must determine that its final judgment is, in fact, both “final” and a
“judgment.” Id. In this case, Plaintiff seeks Rule 54(b) certification for the grant of
summary judgment to Defendant Langford. The Courtʹs March 29, 2012 Order,
granting summary judgment to Defendant Langford, was unquestionably “an
ultimate disposition of an individual claim entered in the course of a multiple claims
action and a judgment in the sense that it [was] a decision upon a cognizable claim for
relief.” Lloyd Noland Foundation, Inc., 483 F.3d at 777 (internal quotation marks and
citations omitted). Therefore, the first step of the 54(b) analysis is satisfied.
Assuming the judgment is final, the “court must then determine that there is
‘no just reason for delay’ in certifying it as final and immediately appealable.” Id.
This determination is within the discretion of the trial court. Id. The inquiry “requires
the district court to balance judicial administrative interests and relevant equitable
concerns.” Ebrahimi, 114 F.3d at 165–66. The focus on judicial administrative interests
“preserves the historic federal policy against piecemeal appeals.” Id. (citation
omitted). The focus on equitable concerns limits certification to those rare occasions
where “immediate appeal would alleviate some danger of hardship or injustice
associated with delay.” Id. (citation omitted).
Here, Plaintiff presents no arguments or facts warranting the certification of
partial judgment. Balancing the judicial administrative interests and relevant
equitable concerns, the Court is unaware of any reason why such a certification would
be proper. Additionally, the Court is unaware of any facts that render the instant
action to be “unusual” and therefore appropriate for such a partial judgment.
Accordingly, the Court declines to enter partial final judgment with respect to
Plaintiff’s claim against Defendant Langford. Therefore, Plaintiff’s Notice of Appeal,
although timely pursuant to Rule 4 of the Federal Rules of Appellate Procedure, is
nevertheless improper. Accordingly, to the extent that Plaintiff requests this Court
certify partial final judgment, Plaintiff’s Motion is DENIED.
Based on the foregoing, the Court concludes that Plaintiff’s Motion for
Reconsideration [Doc. 58] is DENIED, and Plaintiff’s Motion to Reopen Time to File
Appeal [Doc. 59] is GRANTED in part and DENIED in part. To the extent that
Plaintiff requests that this Court reopen the time from which to file an appeal,
Plaintiff’s Motion is GRANTED. However, to the extent that Plaintiff requests that
this Court grant certification of partial final judgment so that Plaintiff may appeal the
Court’s Order of March 29, 2012, Plaintiff’s Motion is DENIED. Of course, this Order
does not preclude Plaintiff’s ability to ever file an appeal in this matter. Once
judgment is entered in Plaintiff’s claim against Defendant Harrison, the Court will
enter final judgment in this matter, thereby allowing Plaintiff to appeal the entire
action, including the Court’s March 29 Order dismissing Plaintiff’s excessive force
SO ORDERED, this 20th day of July, 2012.
S/ C. Ashley Royal
C. ASHLEY ROYAL
UNITED STATES DISTRICT JUDGE
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