Scott v. Walker et al

Filing 13

MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 11/10/2015. Copy mailed to Preston Scott.(tjoh, )

r
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

0 2015
clerk, u s

Richmond Division

PRESTON A. SCOTT,

Plaintiff,
Civil Action No. 3:15CV486-HEH

V.

CORRECTIONAL OFFICER

WALKER, eta/.,
Defendants.

MEMORANDUM OPINION

(Granting Rule 59(e) Relief and Reopening Action)

By Memorandum Opinion and Order entered on October 28, 2015, the Court
dismissed this action because Plaintiff failed to pay the initial partial filing of $16.27 or

state under penalty of perjury that he did not have sufficient assets to pay such a fee. See
28 U.S.C. § 1915(b)(1). The Clerk apparently received the initial partial filing fee on
October 27, 2015, but failed to note the receipt of the payment on the docket until
October 29, 2015. On November 2, 2015, the Court received from Plaintiff a Request for
Reconsideration of the dismissal of his action. (ECF No. 12.) Because the motion was

filed within twenty-eight (28) days of the Court's entry of the October28, 2015
Memorandum Opinion and Order, the Court construes the motion as a motion to alter or

amend thejudgment pursuant to Federal Rule of Civil Procedure 59(e) ("Rule 59(e)
Motion"). See MLCAuto., LLC v. Town ofSouthernPines, 532 F.Sd 269, 277-78 (4th
Cir. 2008) (citing Dove v. CODESCO, 569 F.2d 807, 809 (4th Cir. 1978)).

"[R]econsideration of a judgment after its entry is an extraordinary remedy wliich
should be used sparingly." Pac. Ins. Co. v. Am. Nat'I Fire Ins. Co., 148 F.3d 396, 403

(4th Cir. 1998) (internal quotation marks omitted). 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)). Here, the Court clearly erred
when it dismissed Plaintiffs action for failure to the pay the initial partial filing fee when

Plaintiffhad submitted his payment. Accordingly, the Rule 59(e) Motion (ECF No. 12)

will be granted. The October 28, 2015 Memorandum Opinion and Order will be vacated.
The Clerk is directed to send a copy of the Memorandum Opinion to Plaintiff.
It is so ORDERED.
Is/
HENRY E. HUDSON

Date:

Richmond, Virginia

UNITED STATES DISTRICT JUDGE