v. McNutt et al
Filing
12
MEMORANDUM OPINION & ORDER denying 11 Motion for Reconsideration re 10 Order on Motion to Dismiss for Failure to State a Claim. Signed by Senior Judge Thomas B. Russell on 10/30/2012. cc:counsel (KJA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:12-CV-00064
JESSE R. McNUTT
Plaintiff
v.
ROBERT JEFFREY HINES
Defendant
MEMORANDUM OPINION AND ORDER
Plaintiff Jesse R. McNutt, pro se, filed the instant Motion to Reconsider on
October 23, 2012. (Docket No. 11.) For the reasons that follow, Plaintiff’s Motion will
be DENIED.
“District courts have inherent power to reconsider interlocutory orders and reopen
any part of a case before entry of a final judgment.” In re Saffady, 524 F.3d 799, 803
(6th Cir. 2008).
“A district court may modify, or even rescind, such interlocutory
orders.” Mallory v. Eyrich, 922 F.2d 1273, 1282 (6th Cir. 1991). Here, however, the
Court entered an Order on October 18, 2012, dismissing this case and certifying that an
appeal would be frivolous and not taken in good faith. (Docket No. 10.) Because that
was a final order, the relief Plaintiff effectively seeks is either to alter or amend the prior
judgment, or relief from that judgment.
Further, because Plaintiff timely filed this
Motion for purposes of Fed. R. Civ. P. 59(e), the Court finds that Rule is the proper
vehicle for the relief Plaintiff seeks and will treat his present Motion as such; therefore,
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the Court need not consider the more stringent requirements for setting aside a judgment
under Rule 60.
A Rule 59 motion should not be used to reargue a case on the merits. See
Whitehead v. Bowen, 301 F. App’x 484, 489 (6th Cir. 2008) (citing Sault Ste. Marie Tribe
of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998)). Instead, “[u]nder
Rule 59, a court may alter or amend a judgment based on: ‘(1) a clear error of law; (2)
newly discovered evidence; (3) an intervening change in controlling law; or (4) a need to
prevent manifest injustice.’” Leisure Caviar, LLC v. U.S. Fish & Wildlife Serv., 616 F.3d
612, 615 (6th Cir. 2010) (quoting Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir.
2005)). “A district court, generally speaking, has considerable discretion in deciding
whether to grant [a Rule 59(e)] motion . . . .” Id.
In his present Motion, Plaintiff raises two discernible arguments. First, he argues
that the Court erred when it stated in its prior Memorandum Opinion and Order that
“Plaintiff has not responded, and these matters are now ripe for adjudication.” (Docket
No. 11.) In support, he attaches his “Reply to Response of Attorney General’s Office
with Renewed Motion for Default and Default Judgment” (Reply), which he previously
filed on August 31, 2012. (See Docket Nos. 8; 11-1.) However, Plaintiff is incorrect in
insisting that his Reply, either in form or substance, in any way responded to Defendant’s
Motion to Dismiss for Failure to State a Claim. Plaintiff’s Reply addresses only the
issues raised by Plaintiff in his then-pending Motion for Default Judgment. (See Docket
Nos. 5; 8.) He does not respond to the issues raised in Defendant’s Motion to Dismiss,
specifically that of absolute judicial immunity, other than to insist that his Motion for
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Default should be granted because “[a]bsolute judicial immunity is no defense to not
responding to a lawsuit.” (Docket Nos. 8; 11-1.) Moreover, as the Court previously
noted, Plaintiff’s response to Defendant’s Motion to Dismiss was due August 24, 2012.
Even if Plaintiff’s Reply responded in substance to Defendant’s Motion—which it does
not—it was untimely filed on August 31, 2012. Therefore, the Court finds no justifiable
ground for altering, amending, or vacating its prior judgment based on Plaintiff’s first
argument.
Second, Plaintiff argues that the Court “refers to Haines v Kerner but fails to
extend to layman the other part of Haines that broadens the courts defense of layman or
harmless errors on their party.” (Docket NO. 11, at 2.) The Court previously cited
Haines for the proposition “that pro se pleadings are to be held to a less stringent
standard than formal pleadings drafted by attorneys.” See 404 U.S. 519 (1972). After
reviewing the Haines decision along with the Court’s prior Memorandum Opinion and
Order, the Court finds no merit in Plaintiff’s second argument. The duty to be less
stringent with pro se complainants “does not require [the Court] to conjure up unpled
allegations,” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979) (citation omitted), and
the Court is not required to create a claim for a pro se plaintiff, Clark v. Nat’l Travelers
Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975). Thus, because the Defendant’s
conduct is protected by absolute judicial immunity, the Court’s prior grant of dismissal
was appropriate.
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For these reasons, the Court finds no basis upon which to alter, amend, or vacate
its prior Order dismissing this case. Accordingly, IT IS HEREBY ORDERED that
Plaintiff’s Motion to Reconsider, (Docket No. 11), is DENIED.
Date:
cc:
October 30, 2012
Plaintiff, pro se
Defendant
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