Perry v. SCDC et al
Filing
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ORDER denying 29 Motion for Reconsideration. Signed by Honorable Terry L Wooten on 10/19/2012.(dsto, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Michael Tyrone Perry, #281249,
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Plaintiff,
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vs.
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SCDC; Lee Correctional Institution;
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Sgt. Jimmy Williams; William A. Byars,
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Director over SCDC,
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Defendants.
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____________________________________)
Civil Action No.: 4:12-cv-01001-TLW
ORDER
The plaintiff, Michael Tyrone Perry (“plaintiff”), brought this civil action, pro se, pursuant
to 42 U.S.C. § 1983 on April 12, 2012. (Doc. # 1). On August 21, 2012, this Court signed an Order
accepting a Report and Recommendation issued by the Magistrate Judge assigned to this case,
denying the plaintiff’s two Motions to Amend his Complaint, and dismissing this action without
prejudice and without service of process. (Doc. #26). Before the Court is the plaintiff’s Motion for
Reconsideration pursuant to Federal Rule of Civil Procedure 59(e). (Doc. # 94). The defendants did
not submit a response in opposition.
Federal Rule of Civil Procedure 59(e) provides that:
A motion to alter or amend a judgment must be filed no later than 28 days after the
entry of the judgment.
Although Rule 59(e) does not itself provide a standard under which a district court may grant a
motion to alter or amend a judgment, the United States Court of Appeals for the Fourth Circuit has
recognized three grounds for amending an earlier judgment: (1) to accommodate an intervening
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change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a
clear error of law or prevent manifest injustice. Pac. Ins. Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d
396, 403 (4th Cir. 1998). Thus, Rule 59(e) “permits a district court to correct its own errors, ‘sparing
the parties and the appellate courts the burden of unnecessary appellate proceedings.’” Id. (quoting
Russell v. Delco Remy Div. of Gen. Motors Corp., 51 F.3d 746, 749 (7th Cir. 1995)). “Rule 59(e)
motions may not be used, however, to raise arguments which could have been raised prior to the
issuance of the judgment, nor may they be used to argue a case under a novel legal theory that the
party had the ability to address in the first instance.” Id. “Similarly, if a party relies on newly
discovered evidence in its Rule 59(e) motion, the party ‘must produce a legitimate justification for
not presenting the evidence during the earlier proceeding.’” Id. (quoting Small v. Hunt, 98 F.3d 789,
798 (4th Cir. 1996)). “In general, ‘reconsideration of a judgment after its entry is an extraordinary
remedy which should be used sparingly.’” Id. (quoting 11 Charles Alan Wright et al., Federal
Practice & Procedure § 2810.1 (2d ed. 1995)).
After careful consideration, this Court finds that the plaintiff has not sufficiently
demonstrated a basis for relief under Fed. R. Civ. P. 59(e). In his Motion to Reconsider, the plaintiff
asserts that he should have been given the opportunity to amend his Complaint “to overcome the
deficiency” before his case was dismissed. (Doc. #29). The record reflects that the plaintiff
submitted two Motions to Amend, on June 26, 2012 (Doc. #22) and on July 23, 2012 (Doc. #24),
both filed after the issuance of the Magistrate Judge’s Report and Recommendation (Doc. #18).
Nevertheless, both of the plaintiff’s Motions to Amend were considered, and ultimately denied, in
this Court’s Order issued on August 21, 2012, because to have allowed the amendments would be
futile (See Doc. #26; see also Fed. R. Civ. P. 15(a)(2); Equal Rights Ctr. v. Niles Bolton Assocs., 602
F.3d 597, 603 (4th Cir. 2010) “A district court may deny a motion to amend when the amendment
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would be prejudicial to the opposing party, the moving party has acted in bad faith, or the
amendment would be futile.” (emphasis added))).
The plaintiff also stated in the Motion to Reconsider that the allegations in his pleadings were
sufficient to overcome summary dismissal. (See Doc. #29). However, as noted in the Report and
Recommendation accepted by this Court, to survive summary dismissal, a pro se litigant must allege
facts which set forth a claim that is currently legally cognizable in federal court. Weller v. Dep’t of
Soc. Servs., 901 F.2d 387, 390–91 (4th Cir. 1990). The plaintiff did not allege any basis for a claim
against the named defendants that is currently recognized under 42 U.S.C. § 1983. The South
Carolina Department of Corrections (“SCDC”) is subject to summary dismissal because it is immune
from suit pursuant to the Eleventh Amendment to the United States Constitution. See Virginia v.
Reinhard, 568 F.3d 110 (4th Cir. 2009). The Lee Correctional Institution is subject to summary
dismissal because it is not a “person” amenable to suit within the meaning of 42 U.S.C. § 1983. See
Jones v. Lexington Cnty. Det. Ctr., 586 F. Supp. 2d 444, 451 (D.S.C. 2008). Moreover, negligent
conduct is not legally actionable under 42 U.S.C. § 1983; thus, the alleged negligent misplacement
of plaintiff’s post-conviction relief by Sgt. Jimmy Williams is not a valid legal claim. See Ruefly v.
Landon, 825 F.2d 792, 793–94 (4th Cir. 1987).
For the reasons set forth herein, the plaintiff’s Motion for Reconsideration (Doc. #29) is
DENIED.
IT IS SO ORDERED.
s/ Terry L. Wooten
October 19, 2012
TERRY L. WOOTEN
Florence, South Carolina
United States District Judge
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