Farris v. Murry et al

Filing 10

ORDER denying 9 Motion for Reconsideration re 7 Order Dismissing Case. Signed by Chief Judge Frank D. Whitney on 7/13/17. (Pro se litigant served by US Mail.)(mga)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:15-cv-439-FDW
STEPHON ISSAC FARRIS,

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Plaintiff,
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vs.
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CHRISTOPHER MURRY, et al.,
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Defendants.
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____________________________________ )

ORDER

THIS MATTER comes before the Court on Plaintiff’s correspondence that was docketed
on December 21, 2016, as a motion for reconsideration, (Doc. No. 9).
The pro se Plaintiff is presently serving a 28-year term of imprisonment for a 2008 North
Carolina second-degree murder conviction. Plaintiff alleges in his complaint, which was postmarked September 18, 2015, and docketed on September 22, 2015, that he was subjected to
excessive force by one or more of the defendants. (Doc. No. 1). Plaintiff alleges in the complaint
that he filed a grievance regarding the incident on May 26, 2015, and that he “appealed on 7-1615 to the secretary and as of 9-17-15 I haven’t received a response.” (Doc. No. 1 at 2). The Court
ordered Plaintiff to file either a sworn statement under penalty of perjury or a copy of the grievance
demonstrating exhaustion. (Doc. No. 3). Plaintiff filed a verified statement alleging that he has
exhausted his administrative remedies and attached an Administrative Remedy Procedure form
indicating that he received a Step-One Response on June 11, 2015, and a Step-Two Response on

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July 6, 2015, both of which he appealed.1 (Doc. No. 4 at 2).
On December 9, 2016, the Court issued an Order dismissing the complaint because, “[i]n
his complaint, Plaintiff admits that he did not exhaust his administrative remedies prior to filing
the complaint….” (Doc. No. 7).
In the instant correspondence, which is in the nature of a Rule 59(e) motion for
reconsideration, Plaintiff contends that the Court erred by dismissing the suit because he exhausted
his administrative remedies before filing the complaint. (Doc. No. 9). Specifically, he asserts that
this action was filed on November 10, 2015, that the first grievance step was filed on May 26,
2015, and that the final grievance step was completed on October 27, 2015, fourteen days before
the complaint was filed.
With regard to motions to alter or amend a judgment under Rule 59(e), the United States
Court of Appeals for the Fourth Circuit has stated:
A district court has the discretion to grant a Rule 59(e) motion only in very narrow
circumstances: “(1) to accommodate an intervening change in controlling law; (2)
to account for new evidence not available at trial; or (3) to correct a clear error of
law or to prevent manifest injustice.”
Hill v. Braxton, 277 F.3d 701, 708 (4th Cir. 2002) (quoting Collison v. Int’l Chem. Workers Union,
34 F.3d 233, 236 (4th Cir. 1994)). Furthermore, “Rule 59(e) motions may not be used to make
arguments that could have been made before the judgment was entered.”

Id. Indeed, the

circumstances under which a Rule 59(e) motion may be granted are so limited that
“[c]ommentators observe ‘because of the narrow purposes for which they are intended, Rule 59(e)
motions typically are denied.’” Woodrum v. Thomas Mem’l Hosp. Found., Inc., 186 F.R.D. 350,

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The dates on which he requested the appeals are illegible.

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351 (S.D. W. Va. 1999) (quoting 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
FEDERAL PRACTICE AND PROCEDURE § 2810.1 (2d ed. 1995)).
Plaintiff has not shown the existence of the limited circumstances under which a Rule 59(e)
motion may be granted. The motion for reconsideration is based on a factual assertion that the
complaint was filed on November 10, 2015, which is conclusively refuted by the record. Further,
Plaintiff’s allegation that the grievance procedure was completed on October 27, 2015, is
unverified and Plaintiff has failed to file a copy of that grievance. See (Doc. No. 3). Even if he
had done so, this information would have been unavailing because the complaint was filed more
than a month before the alleged finality date of October 27, 2015. Plaintiff’s motion does not
present evidence that was unavailable when he filed his Complaint, nor does the motion stem from
an intervening change in the applicable law. Furthermore, Plaintiff has not shown that a clear error
of law has been made, or that failure to grant the motion would result in manifest injustice. See
Hill, 277 F.3d at 708. In sum, the Court will deny the Plaintiffs’ motion for reconsideration.
IT IS, THEREFORE, ORDERED that Plaintiffs’ Motion for Reconsideration, (Doc. No.
9), is DENIED.
Signed: July 13, 2017

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