Fontanez v. O'Brien
MEMORANDUM OPINION AND ORDER DENYING 47 PETITIONER'S MOTION TO CLARIFY ORDER CONSTRUED AS MOTION UNDER RULE 59(e). Should the petitioner choose to appeal, he is ADVISED that he must file a notice of appeal with the Clerk of this Court within sixty days after the date of the entry of this judgment order. Signed by Senior Judge Frederick P. Stamp, Jr. on 4/18/2017. (copy to Clerk for USCA via email; copy to Pro Se Petitioner via CM,rrr; copy to counsel via CM/ECF) (nmm) (Additional attachment(s) added on 4/18/2017: # 1 Certified Mail Return Receipt) (nmm).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Civil Action No. 5:14CV77
MEMORANDUM OPINION AND ORDER
DENYING PETITIONER’S MOTION TO CLARIFY
ORDER CONSTRUED AS MOTION UNDER RULE 59(e)
This Court previously entered a memorandum opinion and order
adopting and affirming as framed the magistrate judge’s report and
recommendation, overruling the petitioner’s objections, granting in
part and denying in part the respondent’s motion to dismiss or,
alternatively, for summary judgment, and granting as framed the
petitioner’s petition under 28 U.S.C. § 2241.
ECF No. 44.
doing so, this Court implicitly concluded that the Inmate Financial
petitioner, Jeremy Fontanez (“Fontanez”), has now filed a “Motion
to Clarify Order Pursuant to Fed. R. Civ. P. 60(a).”
ECF No. 47.
participation in the IFRP is truly voluntary, arguing that the
program is compulsory based on the language of 28 C.F.R. § 545.11
and because refusal to participate in the program results in
This Court directed the government to respond to
Fontanez’s motion. The government filed its response, and Fontanez
filed a reply.
Because Fontanez requests a ruling that would
result in a change to the judgment, this Court construes his motion
as one under Federal Rule of Civil Procedure 59(e).
The United States Court of Appeals for the Fourth Circuit has
recognized three grounds for amending an earlier judgment: (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.
Pac. Ins. Co.
v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998).
“Rule 59(e) motions may not be used . . . to raise arguments which
could have been raised prior to the issuance of the judgment, nor
may they be used to argue a case under a novel legal theory that
the party had the ability to address in the first instance.”
A Rule 59(e) motion may not be used to relitigate old matters and
is an extraordinary remedy that should be used sparingly.
is improper to use this motion to ask the court to “rethink what
the court ha[s] already thought through—rightly or wrongly.” Above
the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101
(E.D. Va. 1983).
Fontanez argues that the IFRP is not truly voluntary because
refusal to participate in the program results in “sanctions.”
However, refusal to participate in the IFRP deprives an inmate only
of the privileges the inmate would receive by participating in the
See 28 C.F.R. § 545.11(d).
“Prisoners are not entitled,
constitutionally or otherwise, ‘to any of the benefits agreeing to
participate in the IFRP would provide, such as work detail outside
the prison perimeter, a higher commissary spending limit, a release
gratuity, or pay beyond the maintenance pay level.’”
Holt, 488 F. App’x 587, 588 (3d Cir. 2012) (quoting United States
v. Lemoine, 546 F.3d 1042, 1049 (9th Cir. 2008)); see also Driggers
v. Cruz, 740 F.3d 333, 338-9 (5th Cir. 2014) (concluding that the
loss of privileges for failure to participate in the IFRP does not
constitute a deprivation of an inmate’s liberty interests under the
Due Process Clause).
Further, while Fontanez argues that the
mandatory, this Court finds no support for that argument in the
text of § 545.11 or in relevant case law.
Thus, this Court
reaffirms its implicit conclusion that the IFRP is a purely
Accordingly, Fontanez’s motion (ECF No. 47) is
Should the petitioner choose to appeal the judgment of this
Court to the United States Court of Appeals for the Fourth Circuit,
he is ADVISED that he must file a notice of appeal with the Clerk
of this Court within sixty days after the date of the entry of this
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the Clerk of Court for the United States Court
of Appeals for the Fourth Circuit, to the pro se petitioner by
certified mail, and to counsel of record herein.
April 18, 2017
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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