United States District Court, D. South Carolina, Florence Division
Albert S. Kelly, Plaintiff,
Associate Warden Sharp, Mr. Dennis, Mental Health, Miss Prievett, Mental Heath, Defendants.
matter is before the court on Plaintiff Albert S. Kelly's
(“Plaintiff”) Motion for Reconsideration,
pursuant to Rule 59(e) of the Federal Rules of Civil
Procedure (ECF No. 22), requesting the court to reconsider
its Order (“Order”) (ECF No. 19) entered on July
3, 2018, which accepted the Magistrate Judge's Report and
Recommendation (“Report”) (ECF No. 8) entered on
June 27, 2017. In the Report, the Magistrate Judge
recommended dismissing Plaintiff's claims without
RELVEVANT BACKGROUND TO THE PENDING MOTION
Magistrate Judge issued the Report on June 27, 2017. (ECF No.
8.) The Magistrate Judge advised Plaintiff of the right to
file objections to the Report, the procedures and
requirements for filing objections to the Report, and the
serious consequences if he failed to do so. (ECF No. 8 at 6.)
Plaintiff failed to file objections by the July 14, 2017
deadline. (ECF No. 8). On July 3, 2018, United States
District Judge Marvin Quattlebaum, Jr. accepted the
Magistrate Judge's Report, and dismissed Plaintiff's
Complaint, finding no clear error in the Report. On April 30,
2019, this case was reassigned to the undersigned.
Motion for Reconsideration (ECF No. 22), Plaintiff contends
that he never received the Magistrate Judge's Report and
was never given an opportunity to object because he was no
longer housed at Perry Correctional Institution in June 2018.
(Id. at 1.) (emphasis added). Plaintiff also submits
that the court should have “known [of his address
change] due to another lawsuit pending in Charleston”
(Id.) Plaintiff further reiterates his prior
allegations against Defendants. (Compare ECF No. 22
with ECF No. 1).
LEGAL STANDARD AND ANALYSIS
may alter or amend a judgment pursuant to Rule 59(e) of the
Federal Rules of Civil Procedure if the movant shows (1) an
intervening change in the controlling law; (2) new evidence
that was not available at trial; or (3) that there has been a
clear error of law or a manifest injustice. Robinson v.
Wix Filtration Corp., 599 F.3d 403, 407 (4th Cir.2010).
Upon consideration of Plaintiff's arguments, the court
finds that Plaintiff has failed to establish any intervening
change in the law or new evidence that would alter the
court's decision to accept the Magistrate Judge's
recommendation to dismiss the case. The court is also
satisfied that no clear error of law or manifest injustice
has resulted from its July 3, 2018 Order (ECF No. 19).
brings forth the argument that he never received the Report
and he, therefore, never had an opportunity to file
objections. (ECF No. 22 at 1.) Further, Plaintiff argues that
the court should have known of his address change due to
another, unrelated, case in an entirely different division.
(Id.) However, Plaintiff is mistaken about the
proper procedure for informing the court of any address
change. Despite Plaintiff's apparent confusion, Plaintiff
was informed of the proper procedure for pro se
litigants regarding address changes.
in the Magistrate Judge's June 27, 2017 Order (ECF No.
6), Plaintiff was directed to the following notice:
You are ordered to always keep the Clerk of Court advised in
writing (Post Office Box 2317, Florence, South Carolina
29503) if your address changes for any reason, so as to
assure that orders or other matters that specify deadlines
for you to meet will be received by you. If as a
result of your failure to comply with this Order, you fail to
meet a deadline set by this court, your case may be dismissed
for violating this Order. Therefore, if you have a
change of address before this case is ended, you must comply
with this Order by immediately advising the Clerk of Court in
writing of such change of address and providing the court
with the docket number of all pending cases you have filed
with this court. Your failure to do so will not be
excused by the court.
(Id. at 2.) (emphasis added).
has made no showing that he informed the court of an address
change other than a belated reference to his involvement in
an unrelated Charleston case. Further, Plaintiff has made no
showing of new evidence that would alter the court's
decision to accept the Magistrate Judge's recommendation
to dismiss the case. Plaintiff continues to assert
allegations of misconduct by officials in relation to this
matter. However, the court remains unconvinced that Plaintiff
has directed the court to (1) an intervening change in the
controlling law, (2) new evidence that was not available, or
(3) a clear error of law or a manifest injustice.
Robinson v. Wix Filtration Corp., 599 F.3d 403, 407
(4th Cir. 2010).
on the aforementioned reasons, Plaintiffs Motion for