Watts v. Pickett et al

Filing 51

ORDER denying 44 Motion for Reconsideration ; denying 45 Motion to Amend/Correct; denying 47 Motion to Amend/Correct Signed by Honorable David C. Bramlette, III on 11/14/2018 (DW)

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

CARL WATTS, #77138

PLAINTIFF

V.

CAUSE NO. 5:17-CV-38-DCB-MTP

OFFICER “UNKNOWN” PICKETT,
WARDEN JODY BRADLEY,
WARDEN GABRIEL WALKER, and
UNIT MANAGER DIANIA WALKER

DEFENDANT

ORDER AND OPINION

Before the Court is Plaintiff Carl Watts (“Watts”)’s Motion
for Reconsideration [Doc. 44] re [Doc. 42] Order on Motion to
Vacate, Order on Motion for Summary Judgment; Motion to Amend [Doc.
44] Motion for Reconsideration [Doc. 45]; Motion to Amend/Correct
[Doc. 42] Order on Motion to Vacate, Order on Motion for Summary
Judgment [Doc. 47]. For the reasons that follow, the Motion for
Reconsideration [Doc. 44] (incorporating the Motion to Amend [Doc.
45]) and the Motion to Amend/Correct [Doc. 47] are DENIED. The
Court orders that Watts has thirty days to pay the remaining filing
fee, $150.00, or this suit will be dismissed.
I

On April 18, 2018 the Court entered an Order [Doc. 42]
revoking Watts’s in forma pauperis (“IFP”) status because Watts’s
“Spears

hearing

and

the

protective

measures

Wilkinson

County

Correctional Facility implemented post-assault show that Watts was
not in ‘imminent danger of serious physical injury’ at the time he
filed this suit.” Doc. 42, p.5. The Court ordered that Watts pay
the $400.00 filing fee within sixty days. Watts has partially paid
the filing fee in installments of $100.00 on September 19, 2018,
and $150.00 on October 26, 2018. A remaining $150.00 is due.
When a Motion for Reconsideration is filed, the time of filing
determines whether the Court considers the motion under Federal
Rule of Civil Procedure 59(e) or Rule 60(b). Lavespere v. Niagara
Mach. & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990); See
Dudenhefer v. Davol, Inc., 52 F.3d 1068, *2 (5th Cir. 1995). If a
Motion for Reconsideration is filed “no later than 28 days after
the entry of the judgment,” then it is considered as a Motion to
Alter or Amend a Judgment under Rule 59(e). F.R.C.P. 59(e); See
Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 173
(5th Cir. 1990). In the interest of justice, the Court considers
Watts’s Motion to Reconsider as a Rule 59(e) Motion to Alter or
Amend a Judgment because the Motion was filed on August 20, 2018.
The Motion was filed within 28 days of August 1, 2018 — the date
the Order was mailed to Watts. F.R.C.P. 59(e).

2

Under Rule 59(e), relief may be granted when plaintiff clearly
demonstrates one of the following: (1) a manifest error of law or
fact; (2) newly discovered evidence; or (3) an intervening change
in the controlling law. Schiller v. Physicians Resource Group Inc.,
342 F.3d 563, 567 (5th Cir. 2003). See In re Transtexas Gas Corp.,
303 F.3d 571, 581 (5th Cir. 2002). The Fifth Circuit has held that
a Motion to Alter or Amend a Judgment under Rule 59(e) is not for
“rehashing evidence, legal theories, or arguments that could have
been offered or raised before the entry of judgment.” Templet v.
HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004) (citing Simon v.
United States, 891 F.2d 1154, 1159 (5th Cir. 1990)).
Watts argues that IFP status should be granted because “he
did meet the ‘imminent danger’ exception of 28 U.S.C. § 1915(g) at
the time suit was filed.” Doc. 44, p.1. Watts contends that he was
in imminent danger because defendants housed Watts on the same
zone with inmates who assaulted him, and defendants allowed those
inmates to be out of their cells at the same time as Watts. Doc.
44,

p.6.

Defendants

contend

that

Watts

“simply

rehashes

the

evidence already before the Court and fails to satisfy Plaintiff’s
burden for obtaining relief under either Rule 59(e) or Rule 60(b).”
Doc. 49, p.3, ¶7. The Court agrees. Watts did not satisfy the
burden for relief under Rule 59(e).

3

Watts states that federal law gives him the right to pay what
amount he can until the whole payment is made. Doc. 44, p.8. Watts
contends that federal law gives him the right to pay his fees on
an installment plan, allowing his suit to proceed on the merits.
Id. Watts did not comply with this Court’s Order [Doc. 42] entered
on April 18, 2018, and mailed to Watts on August 1, 2018. The Order
revoked Watts’s IFP status and required Watts to pay the $400.00
filing fee within sixty days of the Order. More than sixty days
have

passed

since

August

2,

2018,

and

$150.00

remains

due.

Therefore, in the interest of justice, the Court orders that Watts
pay the remaining $150.00 within thirty days of this Order, or the
suit will be dismissed.
Accordingly,
IT

IS

ORDERED

that

Plaintiff

Carl

Watts’s

Motion

for

Reconsideration [Doc. 44] re [Doc. 42] Order on Motion to Vacate,
Order on Motion for Summary Judgment (incorporating Motion to Amend
[Doc. 44] Motion for Reconsideration [Doc. 45]); and Plaintiff
Carl Watts’s Motion to Amend/Correct [Doc. 42] Order on Motion to
Vacate, Order on Motion for Summary Judgment [Doc. 47] are DENIED.
If Watts wishes to continue this suit, he must pay the remainder
of the filing fee within thirty days. If Watts fails to do so,
this suit will be dismissed.

4

SO ORDERED this the 14th day of November, 2018.

_David Bramlette____________
UNITED STATES DISTRICT JUDGE

5