Montalto v. Mississippi Department of Corrections et al

Filing 66

ORDER denying 55 Motion to Alter Judgment; denying 55 Motion to Amend/Correct; denying 58 Motion for Certificate of Appealability; granting 61 Motion for Leave to Appeal in forma pauperis. Signed by District Judge Carlton W. Reeves on 03/13/2018. (mm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
STEPHEN DANIEL MONTALTO
V.

PETITIONER
CAUSE NO. 3:15-CV-00457-CWR-FKB

MISSISSIPPI DEPARTMENT OF
CORRECTIONS; COMMISSIONER
PELICIA E. HALL

RESPONDENTS

ORDER
The Court considers three items pending in the above styled case. Respondents have filed
a motion to amend judgment pursuant to Federal Rule of Civil Procedure 59(e) or, in the
alternative, motion to amend findings pursuant to Rule 52(b). Docket No. 55. Petitioner Stephen
Montalto has filed a motion for certificate of appealability, Docket No. 58, and a motion for
leave to appeal in forma pauperis (IFP), Docket No. 61.
I.

Motion for Reconsideration
In the context of Rule 59(e) motions, federal courts recognize only three possible grounds

for reconsideration: “(1) an intervening change in controlling law, (2) the availability of new
evidence not previously available, and (3) the need to correct a clear error of law or prevent
manifest injustice.” Atkins v. Marathon LeTourneau Co., 130 F.R.D. 625, 626 (S.D. Miss. 1990).
Similarly, the purpose of Rule 52(b) motions is “to correct manifest errors of law or fact or, in
some limited situations, to present newly discovered evidence.” Fontenot v. Mesa Petroleum
Co., 791 F.2d 1207, 1219 (5th Cir. 1986).
Having considered Respondents’ motion for reconsideration and supporting
memorandum, the record, and relevant legal authorities, the Court finds that the motion fails to
meet this high standard. Accordingly, the motion is denied.

II.

Motion for Certificate of Appealability
The Final Judgment stated that no certificate of appealability (“COA”) would issue.

Docket No. 51. Montalto nevertheless presses the Court for a COA.
To prevail on a COA application, a petitioner must make a “substantial showing of the
denial of a constitutional right, a demonstration that . . . includes showing that reasonable jurists
could debate whether . . . the petition should have been resolved in a different manner or that the
issues presented were adequate to deserve encouragement to proceed further.” United States v.
Jones, 287 F.3d 325 (5th Cir. 2002) (citation omitted). A district court may deny a COA on its
own, without requiring further briefing or argument. Alexander v. Johnson, 211 F.3d 895, 898
(5th Cir. 2000).
Considering this legal standard, the Court finds again that a COA should not issue.
III.

Motion for Leave to Appeal IFP
Under federal law, a court may allow an indigent litigant to proceed with a suit or appeal

without prepayment of fees. 28 U.S.C. § 1915(a). The applicable law for prisoners seeking IFP
status is reproduced here:
(1) Notwithstanding subsection (a), if a prisoner brings a civil action or files an
appeal in forma pauperis, the prisoner shall be required to pay the full amount of a
filing fee. The court shall assess and, when funds exist, collect, as a partial payment
of any court fees required by law, an initial partial filing fee of 20 percent of the
greater of-(A) the average monthly deposits to the prisoner’s account; or
(B) the average monthly balance in the prisoner’s account for the 6-month
period immediately preceding the filing of the complaint or notice of appeal.
(2) After payment of the initial partial filing fee, the prisoner shall be required to
make monthly payments of 20 percent of the preceding month’s income credited to
the prisoner’s account. The agency having custody of the prisoner shall forward
payments from the prisoner’s account to the clerk of the court each time the amount
in the account exceeds $10 until the filing fees are paid.
Id. § 1915(b).

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Having reviewed Montalto’s motion, the Court finds it well-taken and due to be granted.
Accordingly, the following payment schedule applies:
Because Montalto has a monthly income of $0, his initial partial filing fee is $0. Id.
Going forward, under § 1915(b)(2) Montalto must make monthly payments of 20% of the
preceding month’s income1 credited to his inmate account, until the total appeal filing fee of
$505.00 is paid. The prison at which Montalto is incarcerated is required by law, when his
inmate account exceeds the sum of $10.00, to forward monthly payments with Montalto’s name,
civil action number (No. 3:15-CV-457-CWR-FKB), and appeal number (No. 17-60745) written
on the payment, to the Clerk of Court, 501 E. Court Street, Suite 2.500, Jackson, Mississippi
39201, with each payment being a sum which equals 20% of the preceding month’s income
credited to Montalto’s inmate account.
Copies of this Order will this day be mailed to Montalto and to Premier Supply Link for
MDOC Inmate Accounts, P.O. Box 97538, Pearl, Mississippi 39288.
SO ORDERED, this the 13th day of March, 2018.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

1“

Income” means “whatever sums enter a prison trust account, disregarding the source.” Lucien v. DeTella, 141 F.3d
773, 776 (7th Cir. 1998).

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