Weersing v. Fuller et al

Filing 27

ORDER denying 26 Motion for Reconsideration. Signed by Honorable J Michelle Childs on 7/15/2014.(mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
James B. Weersing,

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Plaintiff,
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v.
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Marcia Fuller, John and Jane Does, Michael )
L. Fair, Boyd H. Parr,
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Defendants.
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___________________________________ )

Civil Action No. 5:13-cv-03242-JMC
ORDER

This matter is now before the court upon Plaintiff James B. Weersing’s (“Plaintiff”)
motion for timely response and request for certificate of appeal (ECF No. 26), which the court
has construed as a motion for reconsideration.1 In his motion, Plaintiff requests that the court
reconsider its order dismissing this case without prejudice due to Plaintiff’s failure to bring the
case into proper form as requested (ECF No. 22). (ECF No. 26 at 1.)
Plaintiff contends that his complaint was dismissed due to bias. 2 (Id.)

Moreover,

Plaintiff appears to argue that his motion for reconsideration of the court order in a related case
which severed that case and resulted in the instant action’s creation, see McFadden v. Fuller,
C/A No. 2:13-cv-02290-JMC, 2013 WL 6182365 (D.S.C. Nov. 22, 2013), stayed the deadlines

1

Plaintiff also moves for a certificate of appealability. (ECF No. 26.) The court denies
Plaintiff’s motion for a certificate of appealability as improper because such certificates are only
issued in federal habeas corpus proceedings. See 28 U.S.C. § 2253. Generally, all final orders of
this court are appealable. See 28 U.S.C. § 1291.
2
The court finds that Plaintiff’s allegation of bias is unsupported and meritless. “[J]udicial
rulings alone almost never constitute valid basis for a bias or partiality recusal motion.” Liteky v.
United States, 510 U.S. 540, 541 (1994). “Put simply, the proper test to be applied is whether
another with knowledge of all of the circumstances might reasonably question the judge’s
impartiality.” United States v. Cherry, 330 F.3d 658, 665 (4th Cir. 2003). There is no bias
evident in this court’s decision to dismiss this action without prejudice due to Plaintiff’s repeated
failure to bring this action into proper form.
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for this action. (See ECF No. 26 at 1–2.) In other words, Plaintiff seems to take the position that
since the court had not yet ruled on his motion for reconsideration regarding the court’s decision
to sever, the deadlines in this new action were suspended. (See id.)
A court may alter or amend a judgment pursuant to Rule 59(e) of the Federal Rules of
Civil Procedure if the movant shows either (1) an intervening change in the controlling law; (2)
new evidence that was not available at trial; or (3) that there has been a clear error of law or a
manifest injustice. Robinson v. Wix Filtration Corp., 599 F.3d 403, 407 (4th Cir. 2010). The
court finds that Plaintiff has failed to set forth any intervening change in the law or new evidence
that would alter the court’s decision to dismiss this action without prejudice. The court is also
satisfied that no clear error of law or manifest injustice has resulted from its May 2, 2014 order
(ECF No. 22). The court is unaware of any support for Plaintiff’s apparent contention that his
deadlines in this action should have been stayed pending his motion for reconsideration in the
related case which created this action.
Therefore, Plaintiff’s motion for reconsideration (ECF No. 26) is DENIED.
IT IS SO ORDERED.

United States District Judge

July 15, 2014
Columbia, South Carolina

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