Barner v. Allen et al

Filing 16

MEMORANDUM OPINION. Signed by District Judge M. Hannah Lauck on 5/31/2016. Copy mailed to Pro Se Plaintiff. (jsmi, )

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

DAQUAN CHARLIE BARNER,
Plaintiff,
V.

Civil Action No. 3:15CV648

SGT. B. ALLEN,£/a/.,
Defendants.
MEMORANDUM OPINION

By Memorandum Order entered on January 20, 2016, the Court filed Plaintiffs civil
action and granted him leave to proceed informa pauperis. On January 28, 2016, the United
States Postal Service returned the Court's January 20, 2016 Memorandum Order to the Court.
On the envelope, the institution noted that "Offender refused this item." (ECF No. 9, at 3.)
Thus, the Court questioned whether Plaintiff wished to continue to prosecute this action. By

Memorandum Order entered on February 3,2016, the Court directed Plaintiff, within eleven (11)
days of the date of entry thereof, to notify the Court of his desire to continue with this action.

The Court warned that failure to comply with the above directive would result in the dismissal of
the action. See Fed. R. Civ. P. 41(b). Plaintiff failed to respond, and by Memorandum Opinion
and Order entered on March 14,2016, the Court dismissed this action.

On April 1, 2016, the Court received a letter motion seeking reconsideration of the
dismissal because Plaintiff contends that he never received the February 3, 2016 Memorandum

Order. Because the letter motion was filed within twenty-eight (28) days of the Court's entry of
the March 14, 2016 Memorandum Opinion and Order, the Court construes the motion as a
motion to alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e) ("Rule

59(e) Motion," ECF No. 13). See MLC Auto., 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)).
"[R]econsideration of a judgment after its entry is an extraordinary remedy which 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., Ill F. Supp. 1406,1419 (D. Md.
1991)). Plaintiff claims that he never received the Court's February 3, 2016 Memorandum Order
and has provided his incoming legal mail log that fails to reflect the institution received the
Memorandum Order, Thus, granting relief would prevent manifest injustice in the instant action.
Accordingly, the Rule 59(e) Motion (ECF No. 13) will be GRANTED. The March 14, 2016
Memorandum Opinion and Order will be VACATED.
An appropriate Order shall issue.
/s/

MAY 11 9nifi

Date:
Richmond, Virginia

M. Harmah Lauck

r

United States District Judge