Curry v. EMCF Host Remedies et al

Filing 16

ORDER denying 8 Motion for Reconsideration; denying 9 Motion for Reconsideration; denying 10 Motion to Amend/Correct; denying 11 Motion to Amend/Correct; denying 12 Motion for Reconsideration; denying 14 Motion for Reconsideration; and de nying 14 Motion for Hearing. Curry presents no basis for reconsideration of the Order Denying in Forma Pauperis Status and Dismissing Case Without Prejudice 3 . Moreover, he is proceeding on his claims in two other cases pending before Judge Reeve s. This case is dismissed as duplicative of the claims proceeding before Judge Reeves. Dismissal is without prejudice as to Currys prosecution of his claims before Judge Reeves; dismissal is otherwise with prejudice. Signed by District Judge Daniel P. Jordan III on May 29, 2014. (EH)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION

JAMES CURRY, # T5448

PLAINTIFF

VERSUS

CIVIL ACTION NO. 4:13cv183-DPJ-FKB

EMCF HOST REMEDIES, et al.

DEFENDANTS

ORDER
Before the Court are pro se Plaintiff James Curry’s Motions for Reconsideration [6, 8, 9,
12, 14] and his Motions to Amend Motion for Reconsideration [10, 11], which the Court
construes as motions to reconsider. Curry is incarcerated with the Mississippi Department of
Corrections. On November 26, 2013, the Court denied him permission to proceed in forma
pauperis and dismissed this case without prejudice. Fifteen days later, Curry filed the Notice of
Appeal [5] and the first motion asking for reconsideration. Then, on December 31, the Court
received the next three motions. On January 7, 2014, he filed the fifth and sixth such motions.
Finally, on January 24, Curry filed the latest Motion for Reconsideration. For the reasons set
forth below, the motions are denied. The case is alternatively dismissed as duplicative of other
cases Curry has pending before the Court.
I.

Reconsideration
A.

First Motion for Reconsideration

The first motion for reconsideration was docketed by the Clerk of Court as an Affidavit of
Oath [6]. But the document—filed with the Affidavit—is clearly styled as a Motion for

Reconsideration.1 Because this motion was filed within 28 days of the Final Judgment, this
motion shall be treated as one under Rule 59(e). Fed. R. Civ. P. 59(e); Forsythe v. Saudi
Arabian Airlines Corp., 885 F.2d 285, 288 (5th Cir. 1989).
A Rule 59(e) motion to alter a judgment should not be granted unless there is: (1) an
intervening change in controlling law; (2) new evidence that could not have been diligently
discovered earlier; or (3) the need to correct a clear error of law or fact or to prevent a manifest
injustice. Infusion Res., Inc. v. Minimed, Inc., 351 F.3d 688, 696-97 (5th Cir. 2003); Schiller v.
Physicians Res. Grp., Inc., 342 F.3d 563, 567-68 (5th Cir. 2003). Motions for reconsideration
are not to be used to relitigate old matters or to present evidence that could have been raised prior
to entry of judgment. Rosenzweig v. Azurix Corp., 332 F.3d 854, 863 (5th Cir. 2003).
“Whatever may be the purpose of Rule 59(e) it should not be supposed that it is intended to give
an unhappy litigant one additional chance to sway the judge.” Atkins v. Marathon Le Torneau
Co., 130 F.R.D. 625, 626 (S.D. Miss. 1990).
In general terms, Curry sought relief under § 1983 for Defendants’ alleged failure to
protect him. Curry now challenges the Court’s finding that he was not in imminent danger. As
for Curry’s objections specific to this case, he first says he was threatened by an unspecified
person on November 21, 2013. Curry alternately claims to have been beaten eight and four times
since he has been to prison. Pl.’s 1st Mot. for Recons. [6] at 1, 2, 4. He also claims that no
matter what unit he is moved to or what prison—other than prisons in Chickasaw or Monroe
County—he has to pay gang members, or they will attack him. He further contends that he was
1

It references not only the dismissal in this case, but those in Curry v. EMCF MDOC
Director, 4:13cv163-HSO-RHW (S.D. Miss. Nov. 8, 2013) (Ozerden, J.), and Curry v. Gradie,
4:13cv144-HTW-LRA (S.D. Miss. Sept. 30, 2013) (Wingate, J.), as well.
2

assaulted, on June 25 and August 21, 2013, by officers, because he asked for protective custody.
These are new arguments brought for the first time on reconsideration, most of which could have
been raised in his complaint and IFP motion.2 His original Complaint, signed November 12,
2013, claimed four attacks, only two of which he would specify, and he made no allegations of
extortion. Curry fails to point to an error of fact or law in the denial of pauper status.
B.

Second, Fourth, and Fifth Motions for Reconsideration

The second, fourth, and fifth motions [8, 10, 11] for reconsideration are all unsigned.
Because they are unsigned, they do not comply with Federal Rule of Civil Procedure 11(a). The
Court notes, however, that the first is an identical copy of the first six pages of the sixth Motion
for Reconsideration [12]. The remaining unsigned motions are identical copies of page two of
the seventh Motion for Reconsideration [14]. Rather than require Curry to cure the defects, the
unsigned motions will be rejected as duplicative. The first, third, and fourth motions for
reconsideration are therefore denied.
C.

Third Motion for Reconsideration

The third motion [9] was purportedly signed on December 19, 2013, but it was not
received by the Court until December 31. No envelope accompanies the motion on the docket.
The Court takes judicial notice that the Court received another lawsuit from Curry on December
31, with a motion to proceed in forma pauperis also purportedly signed on December 19, 2013.
Curry v. EMCF Staffs Host, 3:13cv811-CWR-FKB at [1, 2] (S.D. Miss.). The envelope in that
case shows it was mailed on December 20. The Court therefore finds this motion was also

2

Dismissal was also without prejudice, so Curry could have refiled his claims. See Final
Judgment [4].
3

submitted for mailing on December 20.
Because this was filed, per the prison mailbox rule, within 28 days of the Final Judgment,
this motion shall be treated as one under Rule 59(e). This motion is a duplicate of page two of
the first motion for reconsideration, which has already been rejected above.
D.

Sixth Motion for Reconsideration

Since Curry filed the sixth Motion for Reconsideration [12] more than twenty-eight days
after the Final Judgment, this motion shall be treated as arising under Rule 60.3 Fed. R. Civ. P.
59(e); Forsythe, 885 F.2d at 288. Under this rule, the:
court may relieve a party . . . from a final judgment . . . for the following reasons:
(1)

mistake, inadvertence, surprise, or excusable neglect;

(2)

newly discovered evidence that, with reasonable diligence, could
not have been discovered in time to move for a new trial under
Rule 59(b);

(3)

fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;

(4)

the judgment is void;

(5)

the judgment has been satisfied, released, or discharged; it is based
on an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or

(6)

any other reason that justifies relief.

Fed. R. Civ. P. 60(b).
In this motion, Curry once again claims that he is only safe in Chickasaw or Monroe
County prisons because everywhere else he is subject to the violence from an alleged extortion
3

To the extent the first six pages are duplicates of the second motion [8], they are
likewise denied pursuant to Rule 59.
4

scheme. He once again claims that he was beaten eight times. He also claims that “[r]ight now
today” the prison staff is “still trying to put me back on Unit 4 . . . where I was assaulted and
threaten[ed] . . . .” Pl.’s 6th Mot. for Recons. [12] at 4. He further alleges that Captain Thomas
is a gang member. Curry then adds new allegations of alleged assaults, and he claims that they
are due to the alleged extortion scheme and for “retaliation for prior litigation.” Id. at 6. These
are all new arguments and allegations that were not in his Complaint or motion to proceed in
forma pauperis. Therefore, he fails to demonstrate that the Court erred in its assessment of a
lack of imminent danger.
E.

Seventh Motion for Reconsideration

Finally, the seventh Motion for Reconsideration [14] was likewise filed outside of the
twenty-eight day period following the judgment in this case. Therefore, it is a motion filed
pursuant to Rule 60.4
Curry now claims to have been assaulted ten times. He gives no specifics. He also
claims that on January 5 through 24, 2014, trash has been lined up on the zone. He claims that
on Christmas Day, officers poisoned his food and then “getting [sic] inmate to jump on me.”
Pl.’s 7th Mot. for Recons. [14] at 12. These are all new allegations brought for the first time on
the seventh Motion for Reconsideration. Additionally, the alleged incidents that occurred after
the Complaint do not suffice to demonstrate that Curry was in imminent danger at the time of the
Complaint.
The remainder of this particular motion is a copy of the sixth Motion for Reconsideration

4

To the extent page two is a duplicate of the fourth and fifth motions [10, 11], it is
likewise denied per Rule 59.
5

[12]. The remaining arguments are therefore denied as duplicative and for the same reasons they
were denied above.
II.

Alternative Dismissal as Duplicative
Even if the Court were inclined to grant Curry’s motions for reconsideration, this case

would be dismissed on the independent and alternative ground that it is duplicative. Curry’s
claims are identical to those raised in three other lawsuits, one before Judge Sul Ozerden and two
before Judge Carlton Reeves.5 And in the two cases before Judge Reeves, Curry was granted IFP
status, and his claims are proceeding. See Curry v. EMCF Host Remedies, No. 3:13cv1068CWR-FKB at [12]; Curry v. EMCF Staffs Host, No. 3:13cv811-CWR-FKB at [10]. His claims
are therefore ripe for dismissal as duplicative and malicious under 28 U.S.C. § 1915(e)(2)(B).
See Potts v. Texas, 354 F. App’x 70, 71 (5th Cir. 2009) (“A case is malicious if it is duplicative
of a pending or previous lawsuit.” (citing Pittman v. Moore, 980 F.2d 994 (5th Cir. 1993)
(affirming dismissal of pro se IFP complaint as repetitive and malicious))).
III.

Conclusion
Curry presents no basis for reconsideration of the Order Denying in Forma Pauperis

Status and Dismissing Case Without Prejudice [3]. Moreover, he is proceeding on his claims in
two other cases pending before Judge Reeves.
IT IS THEREFORE ORDERED AND ADJUDGED that, for the foregoing reasons,
pro se Plaintiff James Curry’s Motions for Reconsideration [6, 8, 9, 12, 14] and Motions to
Amend Motion for Reconsideration [10, 11], which the Court construes as motions for
5

Curry v. EMCF Host Remedies, No. 3:13cv1068-CWR-FKB (S.D. Miss.); Curry v.
EMCF Staffs Host, No. 3:13cv811-CWR-FKB (S.D. Miss.); Curry v. EMCF MDOC Director et
al., No. 4:13cv163-HSO-RHW (S.D. Miss.).
6

reconsideration, should be and are hereby DENIED
IT IS FURTHER ORDERED AND ADJUDGED that this case is dismissed as
duplicative of the claims proceeding before Judge Reeves. Dismissal is without prejudice as to
Curry’s prosecution of his claims before Judge Reeves; dismissal is otherwise with prejudice.
SO ORDERED AND ADJUDGED this the 29th day of May, 2014.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE

7