Cardenas v. U.S. Marshal Service

Filing 25

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 1/27/2016. Memorandum Opinion was mailed to Plaintiff. (sbea, )

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

CLERK, U.S. OISTRICT COURl
RICHf,iOND VA

JULIO C. CARDENAS,
Plaintiff,
Civil Action No. 3:15CV192

v.
U.S. MARSHAL SERVICE,
Defendant.

MEMORANDUM OPINION
By Memorandum Opinion and Order entered on June
the Court dismissed Julio C.
failed

to complete and return

fee.

On

June

18,

2015,

Cardenas's civil action because he
the

and consent to the collection of
filing

9,

2015,

in forma pauperis affidavit
fees

form or pay the $400. 00

Cardenas

filed

a

Motion

for

Reconsideration that the Court construed as one brought pursuant
("Rule 59(e) Motion,u

to Federal Rule of Civil Procedure 59(e).
ECF No.
pauperis

7.)

Cardenas claimed that he mailed both the in f orma

affidavit

and

the

consent

to

the

collection of

fees

form within thirty days of the date of the Court's April 8, 2015
Memorandum

Order.

Cardenas

also

experienced

problems

with

demonstrated

that

reopening

manifest

injustice,

the
the

Court

his

explained

mail.
of

the

granted

that

Because
action

the

Rule

he

has

Cardenas

would

prevent

59 (e)

Motion,

vacated

the

June

9,

2015

Memorandum

Opinion

and

Order,

and

reopened the action.
The Clerk subsequently filed Cardenas's in forma pauper is
affidavit

and

his

consent

to

the

attached to his Rule 59(e) Motion.
on August 20,

2015,

(11)

the

days

of

collection

of

of

entry

form

By Memorandum Order entered

the Court directed Cardenas,
date

fees

thereof,

to

within eleven

pay

an

initial

partial filing fee of $45.74 or state under penalty of perjury
that he did not have sufficient assets to pay such a fee.
Memorandum

Order

entered

on

September

16,

2015,

the

By
Court

granted Cardenas's motion for extension of time and directed him
to pay the fee within thirty

( 3 O)

days of

the date of entry

thereof.
Cardenas failed to timely pay the filing fee and failed to
aver

he

could

Opinion

and

not

Order

pay

the

entered

fee.
on

Accordingly,

November

13,

by Memorandum

2015,

the

Court

dismissed the action.
On December 11, 2015, Cardenas filed his notice of appeal.
Within the notice of appeal Cardenas explains that he requested
that

his

sister pay

August

2015,

sister

had

Cardenas

the

initial

but on September 19,
not

claims

received
that

"his

his

partial
2 015,

letter.

family

is

filing
he
(ECF

ready

fee

back

learned that

in
his

No.

19,

at

2.)

with

the

initial

partial filing fee as promptly as this Honorable Court allows
2

him to make

Notably,

the payment owed."

failed to file

the

$45. 74

Cardenas has

initial partial filing

fee

since he

filed his notice of appeal filed back on December 11, 2015.

The

Court construes the argument in his notice of appeal to request
relief

pursuant

to

Federal

Rule

of

Civil

Procedure

59(e)

("Second Rule 59(e) Motion," ECF No. 21).
The United States Court of Appeals for the Fourth Circuit
"(1)

to

law;

(2)

to

or

(3}

to

recognizes three grounds for relief under Rule 59 (e) :
accommodate

an

account

for

correct

a

intervening
evidence

not

error of

law or prevent

v.

Staton,

Md.

F.R.D. 625,
valid

controlling

new

994

(citing Weyerhaeuser Corp.
(D.

in

clear

Hutchinson

1419

change

1991};

626

ground

available

F.2d
v.

Atkins

1076,

Koppers
v.

the

Court

to

trial;

manifest

1081
Co.,

Marathon

(S.D. Miss. 1990)).

for

at

(4th

771

F.

injustice."
Cir.

1993)

Supp.

1406,

LeTourneau

Co.,

130

Cardenas fails to state any

grant

him

Rule

59 (e}

relief.

Cardenas is aware that he owes $45. 74 and he claims his family
is ready to pay that fee.
to

pay

that

Cardenas
his

faults

mail,

fault

initial

when

but

the
he

partial

and

to

the Court directed Cardenas

filing

institutional

fails

Cardenas

However,

fee

mail

explain why

his

family

on

August

services
the

undoubtedly know

is

that

at
the

Moreover, since

Cardenas has made no effort
3

2015.

hindering

institution

initial partial filing fee payment is past due.
this action was dismissed,

for

20,

to pay

the initial partial filing fee.

Accordingly,

Cardenas's Second

Rule 59(e) Motion (ECF No. 21) will be denied.
Cardenas's action was dismissed without prejudice.
if Cardenas wishes to pursue this action,

Thus,

he may simply file a

new civil action.
The

Clerk

is

directed

to

send a

copy of

the

Memorandum

Opinion to Cardenas.

/s/

{?l(/

Robert E. Payne
Senior United States District Judge
Richmond, Virginia
Date:

1/r-1111p

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