Michelson v. Miller et al

Filing 27

ORDER denying Pltf's 20 Motion for Reconsideration; denying as moot Pltf's 24 Motion for Transcript at Government Expense; and Clerk is respectfully instructed to transmit the 16 Second Amended Complaint, the issued 19 proposed summons, and this Order to the U.S. Marshals Service for service of process on Deft Colby Dodd. Signed by Chief Judge Martin Reidinger on 1/06/2020. (Pro se litigant served by US Mail.) (ejb)

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION CIVIL CASE NO. 1:19-cv-00311-MR CHRISTOPHER LEE MICHELSON, ) ) Plaintiff, ) ) vs. ) ) QUINTIN MILLER, et al., ) ) Defendants. ) _______________________________ ) ORDER THIS MATTER is before the Court on Plaintiff’s Motion to Reconsider [Doc. 20] and Plaintiff’s Motion for Transcript at Government Expense [Doc. 24]. Pro se Plaintiff, a pretrial detainee at the Buncombe County Detention Facility (BCDF), filed this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s Amended Complaint [Doc. 13] was dismissed on initial review and Plaintiff was granted the opportunity to amend.1 [Doc. 15]. The Second Amended Complaint passed initial review against Defendant Colby Dodd, a physician’s assistant at BCDF, on a claim of deliberate indifference to a serious medical need, and the remining claims were dismissed for failure to 1 This case was assigned to Judge Frank D. Whitney at that time. Case 1:19-cv-00311-MR Document 27 Filed 01/06/21 Page 1 of 3 state a claim upon which relief can be granted. [Doc. 18]. The Court also denied Plaintiff’s requests for the appointment of counsel and to transfer the case to another district based on allegations of fraud. [See id.]. Plaintiff has now filed this Motion to Reconsider in which he argues that the dismissed claims should have been permitted to proceed and that this case should be transferred to another District Court due to fraud. [Doc. 20]. “[A] district court retains the power to reconsider and modify its interlocutory judgments . . . at any time prior to final judgment when such is warranted.” Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 514–15 (4th Cir. 2003); see also Fed. R. Civ. P. 54(b). Plaintiff’s Motion for Reconsideration will be denied. Plaintiff has failed to demonstrate that reconsideration is warranted with regards to the initial review of his § 1983 claims or the request to transfer this action to another district court. Moreover, to the extent that Plaintiff attempts to add new claims or supplement his existing claims with additional allegations, this attempt to amend the Second Amended Complaint on a piecemeal basis will be denied. See generally Fed. R. Civ. P. 15. In his Motion for Transcript, Plaintiff seeks a copy of a transcript for purposes of his appeal in Fourth Cir. Case No. 20-7427. [Doc. 24]. The Motion is moot because the Fourth Circuit has dismissed the appeal and 2 Case 1:19-cv-00311-MR Document 27 Filed 01/06/21 Page 2 of 3 denied his motion for a transcript at the Government’s expense. See [Doc. 26 at 2]. As Plaintiff’s appeal has been dismissed, the Clerk will be instructed to transmit Plaintiff’s proposed summons [Doc. 19] to the U.S. Marshals Service for service of process on Defendant Dodd. IT IS, THEREFORE, ORDERED that Plaintiff’s pro se Motion to Reconsider [Doc. 20] is DENIED. IT IS FURTHER ORDERED that Plaintiff’s Motion for Transcript at Government Expense [Doc. 24] is DENIED as moot. The Clerk is respectfully instructed to transmit the Second Amended Complaint [Doc. 16], proposed summons [Doc. 19], and this Order to the U.S. Marshals Service for service of process on Defendant Colby Dodd. IT IS SO ORDERED. Signed: January 6, 2021 3 Case 1:19-cv-00311-MR Document 27 Filed 01/06/21 Page 3 of 3

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