Schuett v. Wilson, et al, No. 3:2017cv00699 - Document 12 (E.D. Va. 2018)

Court Description: MEMORANDUM OPINION. See Opinion for details. It is so ORDERED. Signed by District Judge Robert E. Payne on 2/12/2018. Memorandum Opinion was mailed to Plaintiff. (sbea, )

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Schuett v. Wilson, et al Doc. 12 0 IL IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division FEB I 3 CLERK, U.S. DISTRICl COUAl RICHF,:CND. VA CLIFFORD J. SCHUETT, Plaintiff, Civil Action No. 3:17CV699 v. ERIC WILSON, et al., Defendants. MEMORANDUM OPINION Clifford J. Schuett, a federal inmate, submitted this civil action and applied to proceed in forma pauperis. By Memorandum Opinion and Order entered on November 27, 2017, the Court denied Schuett's request to proceed in forma pauperis and dismissed the action without prejudice. before the decision. Court on The matter is now (ECF Nos . 3 , 4 . ) Schuett's request to set aside that (ECF Nos . 6 , 9 . ) I. Factual And Procedural History In denying Schuett's request to proceed in forma pauperis, the Court noted that the pertinent statute provided: In no event shall a prisoner bring a civil action [in forma pauperis] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. Dockets.Justia.com (ECF No. 3, at 1-2 (citing 28 U.S.C. least three actions or appeals § 1915(g) .) that have frivolous or for failure to state a claim. Schuett had at been dismissed Further, as the Court noted that, "[g]iven his past lack of candor and long pattern of abusive litigation" the allegations credibly demonstrate that Schuett serious physical harm." were [was] "insufficient to in imminent danger of (ECF No. 3, at 2-3 (citation omitted). The Court further noted that although the action was dismissed without prejudice, "Schuett remains free to file a new action that adequately specifies why is entitled to proceed in forma pauperis." (Id. at 3.) Instead of filing a new action, Schuett filed a "Motion and Petition to Reopen," (ECF No. 6) and "Petition and Motion for a Order of Protection from Defendants, " details why he physical harm. believes he is ( ECF No. in imminent 9) , wherein he danger of serious The Court will consider these documents under Federal Rule of Civil Procedure 59 (e). Town of S. Pines, 532 F.3d 269, 277-78 See MLC Auto., (4th Cir. 2008) LLC v. (stating that filings made within twenty-eight days after the entry of judgment are construed as Rule 59 (e) motions CODESCO, 569 F.2d 807, 809 (4th Cir. 1978))). 2 {citing Dove v. II. Relief Under Federal Rule Of Civil Procedure 59(e) "[R] econsideration of a judgment after its entry is an extraordinary remedy which should be used sparingly." Pac. Ins. Co. 403 {4th Cir. marks omitted). v. 1998) The Nat'l Fire Ins. Am. {citation United omitted) States Co., 148 F.3d 396, {internal Court of quotation Appeals for the Fourth Circuit "(1) recognizes three grounds for relief under Rule 59 {e) : accommodate account an for correct a intervening change new evidence clear error of Hutchinson v. Staton, F.R.D. {D. Md. 625, 1991}; 626 available F.2d v. Atkins 1076, trial; 1081 Marathon {S.D. Miss. 1990}}. upon the third ground. at Koppers co. , v. (2) to (3) to in controlling law; law or prevent manifest 994 {citing Weyerhaeuser Corp. 1419 not to {4th 7 71 F. or injustice." Cir. 1993} Supp. 14 o6 , LeTourneau Co., 130 Schuett apparently relies However, Schuett has not shown that the Court committed any error of law in dismissing the action. Nor has Schuett shown that setting aside the dismissal of the action is necessary previously to avoid explained, a manifest Schuett injustice. remains free to As the submit Court a new action that adequately details why he is in imminent danger of serious physical harm. Accordingly, Schuett's requests for Rule 59{e} Relief {ECF Nos. 6, 9) will be denied. 3 The Clerk is directed to send a copy of this Memorandum Opinion to Schuett. It is so ORDERED. /s/ Robert E. Payne Senior United States District Judge Richmond, Virgin~ /'/ Date: February IfY, 2018 4

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