United States District Court, S.D. Mississippi, Northern Division
Carlton W. Reeves UNITED STATES DISTRICT JUDGE
Court considers three items pending in the above styled case.
Respondents have filed a motion to amend judgment pursuant to
Federal Rule of Civil Procedure 59(e) or, in the alternative,
motion to amend findings pursuant to Rule 52(b). Docket No.
55. Petitioner Stephen Montalto has filed a motion for
certificate of appealability, Docket No. 58, and a motion for
leave to appeal in forma pauperis (IFP), Docket No.
Motion for Reconsideration
context of Rule 59(e) motions, federal courts recognize only
three possible grounds for reconsideration: “(1) an
intervening change in controlling law, (2) the availability
of new evidence not previously available, and (3) the need to
correct a clear error of law or prevent manifest
injustice.” Atkins v. Marathon LeTourneau Co.,
130 F.R.D. 625, 626 (S.D.Miss. 1990). Similarly, the purpose
of Rule 52(b) motions is “to correct manifest errors of
law or fact or, in some limited situations, to present newly
discovered evidence.” Fontenot v. Mesa Petroleum
Co., 791 F.2d 1207, 1219 (5th Cir. 1986).
considered Respondents' motion for reconsideration and
supporting memorandum, the record, and relevant legal
authorities, the Court finds that the motion fails to meet
this high standard. Accordingly, the motion is denied.
Motion for Certificate of Appealability
Final Judgment stated that no certificate of appealability
(“COA”) would issue. Docket No. 51. Montalto
nevertheless presses the Court for a COA.
prevail on a COA application, a petitioner must make a
“substantial showing of the denial of a constitutional
right, a demonstration that . . . includes showing that
reasonable jurists could debate whether . . . the petition
should have been resolved in a different manner or that the
issues presented were adequate to deserve encouragement to
proceed further.” United States v. Jones, 287
F.3d 325 (5th Cir. 2002) (citation omitted). A district court
may deny a COA on its own, without requiring further briefing
or argument. Alexander v. Johnson, 211 F.3d 895, 898
(5th Cir. 2000).
this legal standard, the Court finds again that a COA should
Motion for Leave to Appeal IFP
federal law, a court may allow an indigent litigant to
proceed with a suit or appeal without prepayment of fees. 28
U.S.C. § 1915(a). The applicable law for prisoners
seeking IFP status is reproduced here:
(1) Notwithstanding subsection (a), if a prisoner brings a
civil action or files an appeal in forma pauperis, the
prisoner shall be required to pay the full amount of a filing
fee. The court shall assess and, when funds exist, collect,
as a partial payment of any court fees required by law, an
initial partial filing fee of 20 percent of the greater of--
(A) the average monthly deposits to the prisoner's
(B) the average monthly balance in the prisoner's account
for the 6-month period immediately preceding the filing of