Coles v. Darden et al, No. 3:2019cv00528 - Document 15 (E.D. Va. 2019)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 12/17/2019. Copy mailed to Plaintiff. (jsmi, )
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Coles v. Darden et al Doc. 15 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division ERIC L. COLES, Plaintiff, V. Civil Action No. 3:19CV528 T. DARDEN, ^ al., Defendant. MEMORANDUM OPINION By Memorandum Order entered on August 29, 2019, the Court conditionally docketed the action. to proceed ^ forma pauperis. October 10, 2019, the Eric L. Coles requested leave By Memorandum Order entered on Court directed Coles to pay an initial partial filing fee of $29.35 or state under penalty of perjury that he did not have sufficient assets to pay such a fee within eleven (11) days of the date of entry thereof. ยง 1915(b)(1). See 28 U.S.C. Because Coles neither paid the initial partial filing fee nor averred that he could not pay such a fee, the Court found that he was not entitled to proceed forma pauperis, and by Memorandum Opinion November 13, 2019, and Order entered on dismissed the action without prejudice for failing to follow the directions of the Court. On December 5, MEMORANDUM OPINION. 2019, Coles filed a MOTION TO RECONSIDER Because this motion was filed within twenty- eight days of the Memorandum Opinion and Order, the Court construes Dockets.Justia.com this motion as one brought pursuant to Federal Rule of Civil Procedure 59(e) ("Rule 59(e) Motion," EOF No. 14). The United States Court of Appeals for the Fourth Circuit recognizes three grounds for relief under Rule 59(e): accommodate an intervening change in controlling "(1) to law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice." Hutchinson V. Staton, 994 F.2d 1076, 1081 (4th Cir. 1993) (citing Weyerhaeuser Corp. V. Koppers Co., 771 F. Supp. 1406, 1419 (D. Md. 1991); Atkins V. Marathon LeTourneau Co., 130 F.R.D. 625, 626 (S.D. Miss. 1990)). Although Coles fails to identify under which section he brings his motion, he appears to rely upon the third ground. Coles contends that on August 29, 2019, he submitted an in forma pauperis possessed. did affidavit the (Rule 59(e) Mot. 1.) not receive received the 26, 2019. to this document. Court showing the assets he Coles suggests that the Court Coles is incorrect. The Court forma pauperis affidavit he references on September The Court also received the consent to collection of fees form from Coles that day. Because Coles complied with the initial August 29, 2019 Memorandum Order conditionally docketing the action, after reviewing his prison trust account statement and his forma pauperis affidavit, the Court determined that Coles could pay an initial partial filing fee of $29.35. The Court provided Coles with an opportunity to pay the initial filing fee or swear under penalty of perjury that he could not pay such a fee within eleven (11) days from the date of entry of that Memorandum Order. Inaction was not an option. Rather, the Memorandum Order very clearly explained that, if Coles failed to respond, the Court would dismiss the action without prejudice. To the extent that Coles believes that submission of the dm forma pauperis affidavit in September 2019 absolves him of complying with the directives of the October 10, 2019 Memorandum Order directing him to pay the initial partial filing fee, he is again incorrect. Coles failed to comply with the directives of the Court and that warranted dismissal without prejudice of this action. Thus, Coles fails to demonstrate that the dismissal of this action rested upon a clear error of law or that vacating that dismissal is necessary to prevent a manifest injustice. Accordingly, Coles Rule 59(e) Motion (ECF No. 14) will be denied. If Coles wishes to pursue this action, he may submit a new complaint that will be processed by the Court as a new civil action. The Clerk is directed to send a copy of this Memorandum Opinion to counsel of record. It is so ORDERED. fitC /s/ Robert E. Payne Senior United States District Judge Richmond, Virginia ^ Date: December _J_/t 2019
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