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Montalto v. Mississippi Department of Corrections

United States District Court, S.D. Mississippi, Northern Division

March 13, 2018

STEPHEN DANIEL MONTALTO PETITIONER
v.
MISSISSIPPI DEPARTMENT OF CORRECTIONS; COMMISSIONER PELICIA E. HALL RESPONDENTS

          Carlton W. Reeves UNITED STATES DISTRICT JUDGE

          ORDER

         The 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. 61.

         I. Motion for Reconsideration

         In the 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).

         Having 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.

         II. Motion for Certificate of Appealability

         The Final Judgment stated that no certificate of appealability (“COA”) would issue. Docket No. 51. Montalto nevertheless presses the Court for a COA.

         To 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).

         Considering this legal standard, the Court finds again that a COA should not issue.

         III. Motion for Leave to Appeal IFP

         Under 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 account; or
(B) the average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of ...

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