Smith v. Thomas et al

Filing 13

MEMORANDUM In his motion for reconsideration, Plaintiff merely asks us to not dismiss his Complaint because it "is afactual Bivens and shall be processed properly with all fairness and justices of the law." (Doc. 12, p. 1). This argument do es not form an appropriate basis for amotion for reconsideration. As such, we will deny the motion for reconsideration. We also note that Plaintiff did not comply with the Court Order granting him leave to file an Amended Complaint which conforms to the instructions contained within Judge Carlson's Report and Recommendation (Doc. 7). Instead, Plaintiff chose to file the document discussed above. Plaintiff will be given an additional amount of time to file an Amended Complaint. If Plaintiff again fails to file an Amended Complaint that conforms to the instructions contained within Judge Carlson's Report and Recommendation (Doc. 7) he risks dismissal of this action. An appropriate Order will follow. Signed by Honorable Robert D. Mariani on 9/12/13. (jfg)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JEREMY SMITH,

Plaintiff,
CIVIL NO. 3:13·CV·01708

v.
(Judge Mariani)
THOMAS, et aI.,
Defendants.
MEMORANDUM
I.

Introduction
On August 16, 2013, this Court issued an Order adopting the Report and

Recommendation of Magistrate Judge Carlson (Doc. 7), overruling Plaintiffs Objections
(Docs. 8, 9, 10), and dismissing Plaintiffs Complaint without prejudice. (Doc. 11). The
Order also gave Plaintiff leave to file an Amended Complaint on or before September 6,

2013. (Id.).
On August 23,2013, Plaintiff filed a document entitled "Amended
ComplainUObjection." (Doc. 12). However, a review of the document shows that it is not an
actual amended complaint, and appears to be an additional objection to the Report and
Recommendation of the Magistrate Judge. (Id.). In the document, it states that Plaintiff
"respectfully object Doc. 8, 9, 10 and as well Doc. 1 not to be dismissed and rightfully be

reinstated ... " (sic) (/d. at 1). As such, we will construe Document 12 on the Docket Sheet

as a motion for reconsideration.

II.

Standard of Review
A motion for reconsideration is a mechanism "to correct manifest errors of law or fact

or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d
Cir.1985). A motion for reconsideration is generally permitted only upon the basis of three
grounds: (1) there is an intervening change in the controlling law; (2) new evidence
becomes available; or (3) clear error of law or to prevent manifest injustice. See Max's
Seafood Cafe ex reI. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir.1999) (citing
North River Ins. Co. v. C/GNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir.1995)).

III.

Discussion
In his motion for reconsideration, Plaintiff merely asks us to not dismiss his

Complaint because it "is a factual Bivens and shall be processed properly with all fairness
and justices of the law." (Doc. 12, p. 1). This argument does not form an appropriate basis
for a motion for reconsideration. As such, we will deny the motion for reconsideration.
We also note that Plaintiff did not comply with the Court Order granting him leave to
file an Amended Complaint which conforms to the instructions contained within Judge
Carlson's Report and Recommendation (Doc. 7). Instead, Plaintiff chose to file the
document discussed above. Plaintiff will be given an additional amount of time to file an
Amended Complaint. If Plaintiff again fails to file an Amended Complaint that conforms to
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the instructions contained within Judge Carlson's Report and Recommendation (Doc. 7) he
risks dismissal of this action. An appropriate Order will follow.

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