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Anderson v. Morris

United States District Court, N.D. Mississippi, Greenville Division

March 29, 2018

LEVONZEL ANDERSON PLAINTIFF
v.
NORRIS MORRIS, et al. DEFENDANTS

          ORDER

          DEBRA M. BROWN, UNITED STATES DISTRICT JUDGE

         Before the Court are Levonzel Anderson's motion for reconsideration regarding the Court's September 29, 2017, order dismissing this action, and his motion for reconsideration regarding the Court's September 27, 2017, order denying injunctive relief. Doc. #124; Doc. #128.

         I

         Relevant Procedural History

         On or about May 20, 2016, Levonzel Anderson filed a pro se prisoner complaint against numerous employees of the Mississippi State Penitentiary and the Mississippi Parole Board[1]alleging (1) that the parole board set off his parole two years; (2) denial of due process regarding rule violations; (3) denial of access to the court; (4) failure to protect; (5) retaliation; (6) loss of property; and (7) unsanitary conditions of confinement.[2] Doc. #1. On September 27, 2016, United States Magistrate Judge Jane M. Virden held a Spears hearing on Anderson's allegations. Doc. #18.

         On or about November 4, 2016, Anderson filed a “Motion for Leave to File an Amended Complaint” seeking to add, among other things, allegations involving incidents of rape that occurred while he was sleeping in support of his failure to protect claim. Doc. #31. Judge Virden, treating the motion as a motion for preliminary injunction seeking protection from the alleged rape incidents, [3] held a hearing on the motion on December 9, 2016. See Doc. #38; Doc. #47; Doc. #81.

         On February 27, 2017, Angela Brown[4] filed a motion for summary judgment addressing Anderson's failure to protect claim. Doc. #62. On March 7, 2017, other defendants[5] filed a “Motion for Summary Judgment Based on Sovereign and Qualified Immunity.” Doc. #68. On or about April 6, 2017, Anderson filed “Plaintiffs' [sic] Response to Angela Browns' [sic] Motion for Summary Judgment.” Doc. #76.

         On April 28, 2017, Judge Virden issued a Report and Recommendation recommending that Anderson's motion for preliminary injunction be denied because he failed to demonstrate a substantial likelihood of success on the merits. Doc. #81. Anderson acknowledged receipt of the April 28, 2017, Report and Recommendation on May 7, 2017. Doc. #87. On or about June 2, 2017, Anderson filed a document captioned, “Plaintiffs Objections to United States Magistrate Judge Report and Recommendations on Preliminary Injunction.” Doc. #88.

         On July 18, 2017, Judge Virden issued a Report and Recommendation recommending that the motions for summary judgment be granted and that Anderson's remaining claims be dismissed, sua sponte, for failure to state a claim upon which relief can be granted. Doc. #100. Anderson acknowledged receipt of the July 18, 2017, Report and Recommendation on July 19, 2017. Doc. #101. On or about August 3, 2017, Anderson filed a “Motion to Show Cause for an [sic] Preliminary Injunction” which, although unclear, appeared to be objections to the July 18, 2017, Report and Recommendation.[6] Doc. #104.

         On September 27, 2017, the Court adopted the April 28, 2017, Report and Recommendation and denied Anderson's motion for preliminary injunction. Doc. #120. Two days later, on September 29, 2017, the Court adopted the July 18, 2017, Report and Recommendation and entered a final judgment dismissing this action. Doc. #121; Doc. #122.

         On or about October 18, 2017, Anderson filed a motion seeking reconsideration of the Court's September 29, 2017, judgment dismissing this action. Doc. #124. On or about November 7, 2017, Anderson filed “Plaintiffs Second Motion to Alter - or Amend the Judgment of Dismissed Preliminary Injunction, Order To - Show Cause, Acknowledgment - of - Receipt [A]ttached - Affidavit, ” which the Court construes as a motion for reconsideration of the Court's September 27, 2017, order denying the preliminary injunction motion. Doc. #128.

         II

         First Motion for Reconsideration

         Under Fifth Circuit jurisprudence:

A Rule 59(e) motion “calls into question the correctness of a judgment.” This Court has held that such a motion is not the proper vehicle for rehashing evidence, legal theories, or arguments that could have been offered or raised before the entry of judgment. Rather, Rule 59(e) “serve[s] the narrow purpose of allowing a party to correct manifest errors of law or fact or to present newly discovered evidence.” Reconsideration of a judgment after its entry is an extraordinary remedy that should be used sparingly.

Templet v. HydroChem, Inc., 367 F.3d 473, 478-79 (5th Cir. 2004) (alteration in original) (citations omitted).[7] “A motion to alter or amend the judgment under Rule 59(e) must clearly establish either a manifest error of law or fact or must present newly discovered evidence and cannot be used to raise arguments which could, and should, have been made before the judgment issued.” Schiller v. ...


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