McElwee v. Truelove et al

Filing 55

OPINION AND ORDER by District Judge Ronald A. White : Denying 52 plaintiff's Motion to alter or amend judgment. (acg, Deputy Clerk)

6:17-cv-00240-RAW-SPS Document 55 Filed in ED/OK on 08/03/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
RAY ARTHUR McELWEE,
Plaintiff,
v.
MS. TRUELOVE, et al.,
Defendants.

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No. CIV 17-240-RAW-SPS

OPINION AND ORDER
On February 26, 2020, this civil rights action was dismissed for Plaintiff’s failure to
exhaust the administrative remedies for his claims pursuant to 42 U.S.C. § 1997e(a), and
judgment was entered (Dkts. 50, 51). On March 6, 2020, Plaintiff filed a motion to alter or
amend the judgment, pursuant to Fed. R. Civ. P. 59(e) (Dkt. 52). He alleges he was hindered
from proceeding with the exhaustion of his administrative remedies by Sgt. Wilson, Sgt.
Murphy, Sgt. Kevin Ross, Sgt. Smitt, Chief Piers, and three others whose names Plaintiff
does not know. These individuals, however, were not named as defendants in this case, and
Plaintiff has provided no factual support for his conclusory allegations.
Defendants have filed a response to Plaintiff’s motion, asserting Plaintiff did not
previously identify any of these particular individuals in his deposition or his response to
Defendant’s motion for summary judgment (Dkt. 53 at 3). Nor did he identify the date these
hindrances allegedly occurred.
Rule 59(e) provides that a district court may alter or amend a judgment on a motion
filed within 28 days of entry of the judgment. The Court may reconsider a final decision if
the moving party shows “(1) an intervening change in the controlling law, (2) new evidence
previously unavailable, [or] (3) the need to correct clear error or prevent manifest injustice.”
Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citation omitted).

6:17-cv-00240-RAW-SPS Document 55 Filed in ED/OK on 08/03/20 Page 2 of 2

“A Rule 59(e) motion should be granted only to correct manifest errors of law or to present
newly discovered evidence.” Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997)
(internal quotation marks omitted).
“[T]he district court is vested with considerable discretion” in determining whether
to grant or deny such a motion. Brown v. Presbyterian Healthcare Servs., 101 F.3d 1324,
1332 (10th Cir. 1996). Rule 59(e), however, does not permit a losing party to rehash
arguments previously addressed or to present new legal theories or facts that could have been
raised earlier. Servants of the Paraclete, 204 F.3d at 1012. “A party’s failure to present its
strongest case in the first instance does not entitle it to a second chance in the form of a
motion to reconsider.” Cline v. S. Star Cent. Gas Pipeline, Inc., 370 F. Supp. 2d 1130, 1132
(D. Kan. 2005) (citation omitted), aff’d, 191 F. App’x 822 (10th Cir. 2006).
Here, the Court finds Plaintiff has failed to meet his burden for relief under Rule
59(e). Therefore, his motion to alter or amend the judgment (Dkt. 52) must be denied.
ACCORDINGLY, Plaintiff’s motion to alter or amend the judgment (Dkt. 52) is
DENIED.
IT IS SO ORDERED this 3rd day of August 2020.

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