Opinion
3:20-cv-183-SLH-KAP
08-22-2022
PATRICK McCAMEY, Plaintiff, v. JOHN WETZEL, Secretary of the Pennsylvania Department of Corrections et al., Defendants
REPORT AND RECOMMENDATION
KEITH A. PESTO, UNITED STATES MAGISTRATE JUDGE
Recommendation
The plaintiff's motion at ECF no. 12, considered as a motion under Fed.R.Civ.P. 59(e), should be denied.
Report
The history of this matter is familiar to the Court: plaintiff is one of three inmates at S.C.I. Houtzdale who sought to establish their right to have the Pennsylvania Department of Corrections provide them with opiates. I recommended that plaintiff's version of the complaint, which appeared to have been copied verbatim from another inmate's complaint, be dismissed. After ample time for objections the Court dismissed the complaint. Plaintiff claimed he never received my Report and Recommendation, and in response the Court vacated the judgment and gave plaintiff a new period of time to file objections.
On plaintiff's motion I twice gave plaintiff additional time to file objections and denied a third request. ECF no. 17. The extended due date for objections expired without objections, and not even late objections have been filed in almost two months since then. The Rule 59 motion should be dismissed. It had no content in itself, and plaintiff has never set forth a reason why the judgment should be altered. The proper bases for a Rule 59(e) motion are (1) an intervening change in controlling law; (2) the availability of new evidence; or (3) the need to correct clear error of law or prevent manifest injustice. Wiest v. Lynch, 710 F.3d 121, 128 (3d Cir. 2013)(citations omitted). A motion under Rule 59(e), like one under Rule 60(b), is not a device to relitigate a matter, see Heath v. Superintendent Frackville SCI, 582 Fed.Appx. 82, 85 (3d Cir. 2014), nor a substitute for an appeal. See Abulkhair v. Google, LLC, 839 Fed.Appx. 763, 765 (3d Cir. 2021), citing United States v. Fiorelli, 337 F.3d 282, 288 (3d Cir. 2003). If plaintiff ever had a reason to alter the judgment his failure to present it in a timely fashion waives any claim for relief.
Pursuant to 28 U.S.C.§ 636(b)(1), plaintiff can within fourteen days file written objections to this Report and Recommendation. Plaintiff is advised that in the absence of timely and specific objections, any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir.2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).