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David E. Clark v. J. Parker

November 22, 2011

DAVID E. CLARK,
PLAINTIFF,
v.
J. PARKER, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Judge Dan Aaron Polster

MEMORANDUM OF OPINION AND ORDER

Plaintiff filed a "Motion to Alter or Amend Judgment" (ECF #7-1) on April 7, 2011, to ask this Court to reconsider its decision to dism iss this action on July 20, 2010. For the following reasons, the Motion is denied.

I. Background

Plaintiff filed this action on March 8, 2010 agai nst Ohio State Penitentiary ("OSP") Unit Manager Administrator J. Parker, f ormer OSP Unit Manager Mr. Hill, Acting OSP Institutional Inspector Ted Jackson, Rules Infraction Board (RIB) Chairman Lieutenant Ritz, RIB Member Ms. Lugle, OSP Sergeant Tanner, Ohio Department of Rehabilitation and Correction ("ODRC") Chief Inspector John Doe, ODRC Assistant Chief Inspector John Doe, OSP Warden David Bobby, and ODRC Director Ernie Moore alleging he was unfairly charged with conduct violations and deprived of personal property. He asserted claims of retaliation for attempting to redress a grievance, denial of due process when he was placed in segrega tion and deprived of hi s per sonal property, and violation of his Eighth Amendment rights by the totality of the events.

Thereafter, the Court issued its Memorandum of Opinion Order dismissing the action on July 20, 2010. (ECF #4.) Specifically, the Court held that the Eleventh Amendment barred the claims against Warden Bobby and Director Moore who were sued only in their official capacities. His claims against the OSP Institutional Inspector, the ODRC Chief Inspector and the ODRC Assistant Chief Inspector were all based on their responses to his grievances which is insufficient to trigger liability under 42 U.S.C. § 1983. His retaliation claim was construed against Ms. Parker and the Court held that he failed to reasonably suggest her conduct was based on an intent to retaliate against him for filing of grievances rather than Plaintiff's conduct which was the subject of the disciplinary action. The Court fur ther held that his placem ent in segregation and loss of property did not represent an atypical and significant hardship sufficient to trigger due process protections and did not present the type of extreme deprivation that triggered Eighth Amendment protections.

Plaintiff filed a Motion to A lter or Ame nd J udgment pursuant to Federal Rule of Civil Procedure 59(e) on April 7, 2011, seeking relief from the Court's decision. Specifically, he alleges his Complaint had m erit. He contends that he clearly stated a claim for ret aliation against Ms. Parker and claims he fai ls to see how she could feel threatened by his com ments to her in his grievance. He fur ther c ontends that this claim should have been construed against all of the Defendants as he did not specifically state that the claim was against only Ms. Parker. He contends that the Chief Inspector, the Assistant Chief Inspector and the OSP Institutional Inspector did not properly investigate his claims in his grievances and this constitutes personal involvement. Finally, he asserts that the actions of the Defendants did rise to the level of an Eighth Amendment violation.

II. Rule 59(e)

Federal Rule of Civil Procedure 59(e) permits a party to file a Motion to Alter or Amend a judgment. Fed. R. Civ. P. 59(e). The Sixth Circuit has determined, however, that a court should grant such a motion only "if there is a clear error of law, newly discovered evidence, an intervening change in controlling law, or to prevent manifest injustice." Gencorp, Inc. v. Am. Int'l Underwriters Co., 178 F.3d 804, 834 (6th Cir. 1999)(citations omitted). Consequently, a party cannot utilize a Rule 59(e) motion to re-litigate issues the Court previously considered or to "raise arguments which could, and should, have been made before judgment issued." Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998);

Keeweenaw Bay Indian Cmty. v. United States, 940 F.Supp. 1139, 1141 (W .D. Mich.1996). In addition, a party wishing to alter or am end a judgment under Rule 59(e) must file his or her Motion within 28 days after the entry of the judgment in question.

III. Time limitations for Motion to Alter or Amend Judgment

Plaintiff initially asserts that his Motion to Alter or Amend Judgment should be considered timely even though it was filed seven months and sixteen days after judgment was entered in this case. The Court's records indicate that a copy of the Memorandum of Opinion and Order was sent to Plaintiff at OSP on July 20, 2010 by regular US Mail. The prison's legal mail log indicates that a package from this Court arrived at the prison on July 21, 2010. ECF #7-1 at 10-13. Plaintiff signed for it the same day. He claims, however, that this package contained only the Court's ruling on his Application to Proceed In Forma Pauperis (ECF #3), and not the Court's Memorandum of Opinion and Order (ECF #4) as indicated on the Court's Notice of Filing.

Plaintiff states that six months passed from the time he received the ruling on his Application to Proceed In Forma Pauperis and he became concerned that he had not received an indication that his Complaint had either been dismissed or served. He states he sent letters to the Court on January 26, 2011 and again on February 3, 2011. He claims he received no response from the Court. He indicates he sent a third inquiry t o the Court at the Cleveland address and received a copy of the docket. He indicates he sent a request to the Court for a copy of the Memorandum of Opinion and Order. The prison's legal mail log indicates this package arrived on March 2, 2011. Plaintiff signed for the package on March 3, 2011. ECF #7-1 at 12. He then indicates he received a copy of an Order on March 16, 2011 which was filed in error in his case. The prison's legal mail log indicates this package was received by Plaintiff on March 17, 2011. He argues that the time to file his Motion to Alter or Amend Judgment should start to run on the date he claims he received the Memorandum of Opinion and Order.

A Court is precluded from calculating the timeliness of a Rule 59(e) motion based on any date other than the date on which the relevant final order or judgment was entered. Keith v. Bobby, 618 F.3d 594, 597 -599 (6th Cir. 2010). The text of the rule indicates that only the final or der or judgment that the m otion seeks to alter or am end can serve as the starting point for determ ining timeliness. Id. District courts do not have eve n the customary discretion given by Rule 6(b) to enlarge the Rule 59(e) period. Id. at 598-99. This court can find no authority to extend the tim e period for filing a Rule 59(e) Motion.

Even if this Court could extend the time period to the date Plaintiff claims he received a copy of the Mem orandum of Opinion and Order from the Court, his Rule 59( e) M otion would be untimely. The prison's legal mail log shows the package arrived from the District Court on March 2, 2011. He signed for this pa ckage on March 3, 2011, not March 14, 2011 as he suggests in his Motion. Under his argument, he would have 28 calendar days from the date of receipt to file his Motion. The Motion would be required to be filed before March 31, 2011, which was a Thursday. Plaintiff indicates on his ...


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