LaKemper v. Huneycutt et al

Filing 10

ORDER denying 9 MOTION Motion to Alter or Amend Order. IT IS FURTHER ORDERED that the Court will allow the Plaintiff an additional 30 days in which to file a superseding Amended Complaint, if he so chooses, to properly state a claim upon which relief can be granted. (Amended Pleadings due by 10/24/2024). Signed by Chief Judge Martin Reidinger on 9/23/2024. (Pro se litigant served by US Mail.) (hms)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL CASE NO. 5:24-cv-00118-MR

COBEY LAKEMPER,

)
)
Plaintiff,
)
)
vs.
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RONNIE HUNEYCUTT, et al.,
)
)
Defendants.
)
_______________________________ )

ORDER

THIS MATTER is before the Court on the Plaintiff’s pro se “Motion to
Alter or Amend Order” [Doc. 9].
The incarcerated Plaintiff filed this action pursuant to 42 U.S.C. § 1983
addressing incidents that allegedly occurred at the Alexander Correctional
Institution.1 [Doc. 1]. On August 1, 2024, the Court dismissed the Complaint
on initial review because inter alia it appeared that the Plaintiff was
attempting to assert unrelated claims against unrelated Defendants, and it
provided the Plaintiff the opportunity to file a superseding Amended
Complaint.

[Doc. 7].

On August 2, 2024, a “Notice of Retalitary [sic]

Transfer” dated July 26, 2024, was docketed in which the Plaintiff alleges

1

The Plaintiff was transferred to the Tabor Correctional Institution on July 12, 2024. [See
Doc. 8].

that the Defendants transferred him to the Tabor CI, a more restrictive prison,
in retaliation for filing the instant lawsuit and to frustrate his litigation efforts.
[Doc. 8]. On August 14, 2024,2 the Plaintiff filed the instant Motion to Alter
or Amend in which he asks the Court to reconsider the August 1st Order,
and to allow the Complaint to proceed. [Doc. 9]. The Plaintiff has not filed
an Amended Complaint.
“[A] district court retains the power to reconsider and modify its
interlocutory judgments . . . at any time prior to final judgment when such is
warranted.”3 Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 514–
15 (4th Cir. 2003); Fed. R. Civ. P. 54(b); see McDaniel v. Green Dot Corp.,
No. 22-1541, 2022 WL 17103701, at *1 (4th Cir. Nov. 22, 2022) (“a motion to
proceed in forma pauperis is an appealable [interlocutory] order”) (quoting
Roberts v. U.S. Dist. Ct., 339 U.S. 844, 845 (1950) (per curiam)). Motions
for reconsideration of interlocutory orders are not subject to the strict
standards applicable to motions for reconsideration of a final judgment. Am.
Canoe, 326 F.3d at 514. A court may revise an interlocutory order under the
same circumstances in which it may depart from the law of the case: “(1) a

2

Houston v. Lack, 487 U.S. 266, 276 (1988) (establishing the prisoner mailbox rule);
Lewis v. Richmond City Police Dep’t, 947 F.2d 733 (4th Cir. 1991) (applying prisoner
mailbox rule to § 1983 case).
3

In seeking reconsideration, the Plaintiff cites Rule 59(e); however, that rule applies only
to final judgments.
2

subsequent trial producing substantially different evidence; (2) a change in
applicable law; or (3) a clear error causing manifest injustice.” U.S. Tobacco
Cooperative Inc. v. Big South Wholesale of Va., LLC, 899 F.3d 236, 257 (4th
Cir. 2018) (quoting Carlson v. Boston Sci. Corp., 856 F.3d 320 (4th Cir.
2017)). The decision to grant or deny a motion to reconsider is committed
to the discretion of the district court. Am. Canoe, 326 F.3d at 515.
Here, the Plaintiff argues that his Complaint should not have been
dismissed on initial review because his claims about legal mail rejections and
the retaliatory termination from his prison job are “interwoven and related.”
[Doc. 9 at 2]. The Plaintiff has failed to demonstrate the existence of new
evidence, a change of applicable law, or a clear error causing manifest
injustice that would warrant reconsideration of the August 1st Order.
Therefore, the Motion to Alter or Amend is denied. To the extent that the
Plaintiff is attempting to amend on a piecemeal basis by alleging new facts
in his Motion to Alter or Amend, this will not be allowed. Moreover, to the
extent that the Plaintiff intended for his “Notice” to serve as a motion to
supplement to the Complaint, this is denied as moot because the Plaintiff
has been granted leave to amend.4

The Plaintiff is reminded that he must seek relief from the Court by filing a “Motion.” [See
May 10, 2024 Order of Instructions]. Letters and other miscellaneous filings will not
receive a response from the Court and may be stricken.
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3

IT IS, THEREFORE, ORDERED that the Plaintiff’s “Motion to Alter or
Amend Order” [Doc. 9] is DENIED.
IT IS FURTHER ORDERED that the Court will allow the Plaintiff an
additional thirty (30) days in which to file a superseding Amended
Complaint, if he so chooses, to properly state a claim upon which relief can
be granted. [See Doc. 7]. The Amended Complaint, including attachments,
must not exceed 25 pages unless the Plaintiff obtains prior authorization from
the Court.
allowed.

Piecemeal filing and incorporation by reference will not be
If Plaintiff fails to so amend his Complaint, this case will be

dismissed and closed without further notice.
IT IS SO ORDERED.
Signed: September 23, 2024

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