Howe v. Manning et al

Filing 13

MEMORANDUM OPINION. See for complete details. Signed by District Judge M. Hannah Lauck on 12/09/2016. Clerk mailed copy to pro se Plaintiff. (nbrow)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
FRANK EDWARD HOWE, III,

DEC - 9 20l6
CLERK, U.S. DISTRICT COURT
RICHMOND, VA

Plaintiff,

v.

Civil Action No. 3:16CV660

OFFICER MANNING, et aL,
Defendants.

MEMORANDUM OPINION
Frank Edward Howe, III, a Virginia prisoner proceeding prose, filed this civil action. By
Memorandum Opinion and Order entered on November 9, 2016, this Court dismissed the action
without prejudice because Howe neither paid the initial partial filing fee nor averred that he
cannot pay such a fee.
On November 16, 2016, the Court received from Howe a Notice of Appeal containing
argument that the Court construes as a motion filed pursuant to Federal Rule of Civil Procedure
59(e) ("Rule 59(e) Motion," ECF No. 12). Howe contends that he misunderstood "the last order
you sent me, so I would like to go forward on my case" and he "can not pay the $.12 . . . [filing]
fee." (Id at 1 (capitalization corrected).)
The United States Court of Appeals for the Fourth Circuit has recognized three grounds
for reliefunder 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)). Howe's purported

confusion about the Memorandum Order directing him to either pay the initial partial filing fee
or averring that he could not pay such a fee does not excuse his failure to return it to the Court.
Howe fails to demonstrate that the Court committed a clear error of law or that reopening his
case is necessary to prevent manifest injustice. Nor does Howe demonstrate any other basis for
granting Rule 59(e) relief. See Williams v. Virginia, 524 F. App'x 40, 41 (4th Cir. 2013) ("The
reconsideration of a judgment after entry is an extraordinary remedy which should be used
sparingly." (citing Pac. Ins. Co. v. Am. Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998))).
Accordingly, Howe's Rule 59(e) Motion (ECF No. 12) will be DENIED. Nevertheless, because
Howe has clearly expressed his desire to continue to pursue his claims, the Court will DIRECT
the Clerk to refile Howe's Complaint (ECF No. 1) as a new civil action as of the date of entry
hereof.
An appropriate Order will accompany this Memorandum Opinion.

~lsY
0

Date: 0EC
9 2016
Richmond, Virginia

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