Kelly v. Solomon et al

Filing 6

ORDER granting 5 Motion for Reconsideration. The Clerk of Court is respectfully directed to reopen this case, separately docket Plaintiffs Application to Proceed in District Court Without Prepaying Fees or Costs. (Doc. No. 5 at 20), and issue an Order to Plaintiffs institution requiring it to file a certified copy of Plaintiffs six-month trust account statement with the Court. The other various motions appended to the Motion for Reconsideration are DENIED without prejudice as premature.. Signed by Chief Judge Frank D. Whitney on 1/30/18. (Pro se litigant served by US Mail.)(clc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:17-cv-311-FDW

WILLIE T. KELLY, JR.,

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Plaintiff,
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vs.
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GEORGE T. SOLOMON, et al.,
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Defendants.
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___________________________________ )

ORDER

THIS MATTER is before the Court on Plaintiff’s Motion for Reconsideration, (Doc. No.
5), in which he asks the Court to reconsider its Order dismissing the case without prejudice due to
Plaintiff’s failure to pay the filing fee or move to proceed in forma pauperis in accordance with a
Court Order. (Doc. No. 3); see (Doc. No. 2). Plaintiff claims that he was unable to comply with
the deadline for filing his in forma pauperis application because he was undergoing hip
replacement surgery. He has attached to his Motion materials including an Application to Proceed
in District Court Without Prepaying Fees or Costs. (Doc. No. 5 at 20), as well as other various
motions and declarations.
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.”

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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,
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’s Motion for Reconsideration will be granted because he failed to meet the Court’s
deadline due to surgery. The case will therefore be reopened and the Clerk will proceed on
Plaintiff’s motion to proceed in forma pauperis. However, the other various motions attached to
the Motion for Reconsideration are denied without prejudice as premature. Should Plaintiff be
granted permission to proceed in forma pauperis, Plaintiff may file appropriate motions with
regard to this case.
IT IS, THEREFORE, ORDERED that:
(1) Plaintiff’s Motion for Reconsideration, (Doc. No. 5), is GRANTED.
(2) The Clerk of Court is respectfully directed to reopen this case, separately docket
Plaintiff’s Application to Proceed in District Court Without Prepaying Fees or Costs.
(Doc. No. 5 at 20), and issue an Order to Plaintiff’s institution requiring it to file a
certified copy of Plaintiff’s six-month trust account statement with the Court.
(3) The other various motions appended to the Motion for Reconsideration are DENIED
without prejudice as premature.

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Signed: January 30, 2018

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