Herring v. Clarke

Filing 48

MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 01/16/2015. Copy mailed to pro se plaintiff.(tjoh, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

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JAN | 6 2015
1
CLERK. Uf- Dl-'-rnCT COURT
RIC!n'.v_,MD. VA

ROBERT MICHAEL HERRING,
Petitioner,
v.

Civil Action No. 3:13CV326

HAROLD CLARKE,

Respondent.
MEMORANDUM OPINION

Robert Michael Herring, a Virginia prisoner proceeding pro se, filed this civil action. By

Memorandum Opinion and Order entered on June 24,2014, this Court dismissed the action
without prejudice because Herring failed to keep the Court informed of his current address.
On July 11, 2014,the Court received from Herring a "RULE 60 MOTION FOR RELIEF
FROM JUDGMENT OR ORDER." (ECF No. 29.) Because Herring filed the Motion within

twenty-eight days after the entryof judgment, the Court construes it as a motion filed pursuant to
Federal Rule of Civil Procedure 59(e) ("Rule 59(e) Motion"), see MLCAuto., LLC v. Town ofS.
Pines, 532 F.3d 269,277-78 (4th Cir. 2008) (citing Dove v. CODESCO, 569 F.2d 807, 809 (4th
Cir. 1978)).

The United States Court of Appeals for the Fourth Circuit has recognized three grounds
for relief under Rule 59(e): "(1) to accommodate an intervening 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." Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir. 1993) (citing
Weyerhaeuser Corp. v. Koppers Co., 771 F. Supp. 1406,1419 (D. Md. 1991); Atkins v.
Marathon LeTourneau Co., 130 F.R.D. 625, 626 (S.D. Miss. 1990)).

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Herring argues that his Rule 59(e) Motion should be granted in order to prevent manifest
injustice. Herring states that he"was unable to file to change of address with the Court because
he was transferred to Chesapeake Jail andwas not allowed to take any env[e]lopes, stamps, or

writing material[s] from the Norfolk Jail

" (Rule 59(e) Motion 1.) Herring could not obtain

stamps, writing materials or envelopes until hehad been incarcerated in the Chesapeake Jail for
thirty days. (Id) OnJune 28, 2014, Herring was transferred to Virginia Beach Jail where he had
access to writing materials and stamps. (Id. at2.) Herring states that he filed his notice of
change of address as soon as possible. (Id.) The Court received Herring's notice of change of
address on July 2, 2014. (ECF No. 28.) The Court finds that Herring hasdemonstrated
entitlement to Rule 59(e) relief in orderto prevent manifest injustice due to circumstances
beyond his control.

Accordingly, Herring's Rule 59(e) Motion (ECF No. 29) will be GRANTED. The June
24,2014 Memorandum Opinion and Order will be VACATED. The Court will continue to

process Herring's action. The Court will DIRECTRespondent to file a dispositive motion
within sixty (60) days of the date of hereof.
An appropriate Order will accompany this Memorandum Opinion.

Date:/-/*-^
Richmond, Virginia

Is!

James R. Spencer
Senior U. S. District Judge