GAITHER v. PULLIN et al

Filing 21

ORDER DENYING 13 Motion for Leave to File and DENYING as moot 17 Motion to Appoint Counsel. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 8/5/2015. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
RUSSELL GAITHER,
Plaintiff,
v.
Nurse PULLIN, et al.,
Defendants.

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CIVIL ACTION NO. 5:14-CV-260 (MTT)

ORDER
The Plaintiff has moved to amend his amended complaint and moved for the
appointment of counsel. (Docs. 13;17). The Court entered an order dismissing all
claims against the Defendants on August 21, 2014, and then entered a judgment
dismissing the case on August 22, 2014. (Docs. 6; 7). The Plaintiff thereafter filed a
notice of appeal. (Doc. 9). During the pendency of the appeal, the Plaintiff filed his
motion to amend and motion to appoint counsel.1 (Docs. 13; 17). The motion to amend
simply states that the Plaintiff wants to add a party and that “the Court should not deny
(one) chance to amend and maybe more … to fix what the Court thinks is wrong with
the complaint.” In the remainder of the motion, the Plaintiff states that Judge Weigle
has a “conflict[] of interest” and is “prejudicial” and “racial.”
“Rule 15(a) has no application once the district court has dismissed the complaint
and entered final judgment for the defendant.” United States ex. rel. Atkins v. McInteer,
470 F.3d 1350, 1361 n.22 (11th Cir. 2006). After judgment has been entered, “the

1

Also during the pendency of the appeal, the Plaintiff filed a motion to appoint counsel and a motion for
leave to appeal in forma pauperis, which the Court denied. (Docs. 10; 15).

plaintiff may seek leave to amend if he is granted relief under Rule 59(e) or Rule
60(b)(6).” Id. Because the Plaintiff has moved to amend his complaint before he has
been granted relief from the judgment pursuant to a proper post-judgment motion, the
Plaintiff’s motion to amend his amended complaint is DENIED. (Doc. 13). To the extent
the motion to amend can be construed as a motion seeking relief from the judgment,
that motion is DENIED. The Plaintiff has not provided a reason that would warrant relief
from the judgment, such as an intervening change in the law, newly discovered
evidence, clear error of law by the Court, or any other reason that justifies relief.2 See
M.D. Ga. L.R. 7.6; Fed. R. Civ. P. 59(e); Fed. R. Civ. P. 60(b); see also Bingham v.
Nelson, 2010 WL 339806, at *1 (M.D. Ga.). To the extent the Plaintiff’s motion to
amend can also be construed as a motion for Judge Weigle to recuse himself, it is
DENIED as moot. The motion to appoint counsel is also DENIED as moot. (Doc. 17).
SO ORDERED, this 5th day of August, 2015.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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The Court also notes that the Plaintiff filed his motion to amend on November 3, 2014, which is months
after the judgment was entered on August 22, 2014. Pursuant to Local Rule 7.6, a party has 28 days
after the entry of judgment to file a motion for reconsideration. Rule 59(e) also allows a party 28 days to
move to alter or amend a judgment. Accordingly, even if the motion to amend is construed as a motion
for reconsideration or a motion to pursuant to Rule 59(e), that motion would be untimely.
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