Gomez v. Wilson et al

Filing 32

MEMORANDUM AN DORDER - Plaintiff's Motion for Reconsideration (filing no. 28 ), liberally construed as a motion for relief pursuant to Rule 59(e), is denied. Plaintiff's Motion for Leave to Appeal IFP (filing no. 30 ) is granted. The Clerk of the court shall provide the Court of Appeals with a copy of this Memorandum and Order. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party) (AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MARTIN GOMEZ,
Plaintiff,
v.
DENNIS WILSON, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

8:12CV367

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff’s Motion for Reconsideration, which
the court liberally construes as a motion for relief pursuant to Fed. R. Civ. P. 59(e).
(Filing No. 28.) Also pending is Plaintiff’s Motion for Leave to Appeal in forma
pauperis (“IFP”). (Filing No. 30.) The court will address each Motion in turn.
I.

Rule 59(e) Motion

On August 13, 2013, the court dismissed Plaintiff’s Complaint and entered
Judgment against him. (Filing Nos. 26 and 27.) Liberally construed, Plaintiff seeks
relief from the court’s Judgment pursuant to Fed. R. Civ. P. 59(e). (Filing No. 28.)
“Rule 59(e) motions serve the limited function of correcting manifest errors of law
or fact or to present newly discovered evidence . . . . Such motions cannot be used
to introduce new evidence, tender new legal theories, or raise arguments which could
have been offered or raised prior to entry of judgment.” U.S. v. Metro. St. Louis
Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006) (internal citations and quotations
omitted).

The court has carefully reviewed Plaintiff’s Motion and finds that he is not
entitled to relief under Rule 59(e). Accordingly, Plaintiff’s Motion for
Reconsideration, liberally construed as a motion for relief pursuant to Rule 59(e), is
denied.
II.

Motion to Appeal IFP

On September 9, 2013, Plaintiff filed a timely Notice of Appeal (filing no. 29)
along with a Motion for Leave to Appeal IFP (filing no. 30). Plaintiff is a
nonprisoner and this case was removed to this court by Defendant. (See Filing No.
1.) Upon review of Plaintiff’s Motion, the court finds that Plaintiff is financially
eligible to appeal in forma pauperis.
IT IS THEREFORE ORDERED that:
1.
Plaintiff’s Motion for Reconsideration (filing no. 28), liberally construed
as a motion for relief pursuant to Rule 59(e), is denied.
2.

Plaintiff’s Motion for Leave to Appeal IFP (filing no. 30) is granted.

3.
The Clerk of the court shall provide the Court of Appeals with a copy of
this Memorandum and Order.
DATED this 24th day of September, 2013.
BY THE COURT:
s/ John M. Gerrard
United States District Judge

2

*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on
their Web sites. Likewise, the court has no agreements with any of these third parties
or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
3