Alston v. Fbi

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PRESSLEY B. ALSTON, : : Plaintiff, : Civil Action No.: 09-1397 (RMU) : v. : Re Document No.: 42 : FEDERAL BUREAU : OF INVESTIGATION, : : Defendant. :

MEMORANDUM OPINION

DENYING THE PLAINTIFF’S MOTION FOR RELIEF UPON RECONSIDERATION

The plaintiff, a pro se litigant currently incarcerated in Florida, commenced this action

against the Federal Bureau of Investigation (“FBI”), seeking relief under the Freedom of

Information Act (“FOIA”), 5 U.S.C. § 552. Compl. at 1. The court granted him leave to proceed

in forma pauperis on August 20, 2009. Minute Order (August 20, 2009). On November 2,

2010, the court determined that at the time that the plaintiff brought this action, he had

accumulated three or more “strikes” as defined by 28 U.S.C. § 1915(g). 1 See generally Mem

Op. (Nov. 2, 2010). The court thus vacated its previous order granting the plaintiff in forma

pauperis status and directed him to pay the $350 filing fee applicable to this civil action within

thirty days or suffer dismissal of the case. See Order (Nov. 2, 2010). Because the plaintiff did

not comply with the order to pay the filing fee, the court dismissed his case without prejudice on

February 2, 2011. See generally Mem. Op. (Feb. 2, 2011) at 2; Order (Feb. 2, 2011).

On February 22, 2011, the court received a submission from the plaintiff captioned: “the

1 Under 28 U.S.C. 1915(g), the court is required to deny a prisoner’s motion to proceed under in forma pauperis status if he 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.” 28 U.S.C. § 1915(g). Plaintiff Pressley Alston Requests a corrective sentensh(iy)a [sic] sententia [sic].” See generally

Pl.’s Mot. This motion asks the court “to correct its February 2, 2011 final decision.” Id. at 2.

Because the plaintiff filed his motion within twenty-eight days of the court’s February 2, 2011

dismissal order, the court construes the plaintiff’s motion as a motion for relief upon

reconsideration under Federal Rule of Civil Procedure 59(e). See FED. R. CIV. P. 59(e). To this

date, the defendant has not filed a response.

While the court has considerable discretion in ruling on a Rule 59(e) motion, the

reconsideration and amendment of a previous order is an unusual measure. Firestone v.

Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (per curiam); McDowell v. Calderon, 197 F.3d

1253, 1255 (9th Cir. 1999). Rule 59(e) motions “need not be granted unless the district court

finds that there is an intervening change of controlling law, the availability of new evidence, or

the need to correct a clear legal error or prevent manifest injustice.” Ciralsky v. Cent.

Intelligence Agency, 355 F.3d 661, 671 (D.C. Cir. 2004) (quoting Firestone, 76 F.3d at 1208).

Moreover, “[a] Rule 59(e) motion to reconsider is not simply an opportunity to reargue facts and

theories upon which a court has already ruled,” New York v. United States, 880 F. Supp. 37, 38

(D.D.C. 1995), or a vehicle for presenting theories or arguments that could have been advanced

earlier, Kattan v. District of Columbia, 995 F.2d 274, 276 (D.C. Cir. 1993); W.C. & A.N. Miller

Cos. v. United States, 173 F.R.D. 1, 3 (D.D.C. 1997).

The court has thoroughly reviewed the plaintiff’s submission. See generally Pl.’s Mot.

Although it is often difficult to comprehend what the plaintiff is stating, the plaintiff appears to

argue that dismissal is inappropriate because he has made three partial “pauperis payments”

toward the filing fee. Id. at 1. On November 2, 2010, the court revoked the plaintiff’s in forma

pauperis status and instructed him to pay the full filing fee of $350.00 to maintain his action.

Order (Nov. 2, 2010) at 1. Despite this instruction, the plaintiff did not pay the full filing fee of

2 $350 by the imposed deadline. 2 Furthermore, the plaintiff still has not tendered the filing fee.

In sum, the plaintiff has not identified an intervening change in the controlling law, or a

need to correct a clear legal error or prevent manifest injustice. See generally Pl.’s Mot. Nor has

he proffered any evidence that was not previously available to him. Id. Accordingly, the court

declines to provide any relief upon reconsideration of its dismissal order. See Benavides v. Drug

Enforcement Admin., Civ. No. 10-043, (D.D.C. August 20, 2010) (Dismissal Order) (dismissing

the case without prejudice because the plaintiff, whose in forma pauperis status had been

revoked, failed to pay the filing fee within the allotted time). An Order consistent with this

Memorandum Opinion is separately and contemporaneously issued this 7th day of November,

2011.

RICARDO M. URBINA United States District Judge

2 The court’s records indicate that the plaintiff has paid $74.00. 3