McDonald v. Lavespere

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA RANDY MCDONALD (#452858) CIVIL ACTION VERSUS NO. 18-743-SDD-RLB DR. RANDY LAVESPERE, ET AL.

RULING On or about September 9, 2019, the Plaintiff filed a Motion to Set Aside and Reconsider Ruing’ presumably pursuant to Rule 59 of the Federal Rules of Civil Procedure. Therein, the Plaintiff alleges that, due to a clerical error on the Plaintiff's part, the Court failed to consider the Plaintiffs Traverse to the Magistrate’s Report and Reccomendation? before adopting the Report and Recommendation’ and dismissing the Plaintiffs ADA/RA claims with prejudice.

Reconsideration of a judgment under Rule 59{e) is an “extraordinary remedy that should be used sparingly” to correct “manifest errors or law or fact or to present newly discovered evidence.“ “Rule 59(e} motions are not the proper vehicle for rehashing evidence, legal theories or arguments that could have been offered or raised before the entry of judgment.”® in the instant matter, the Plaintiff failed to file an opposition the Defendants’ Motion for Judgment on the Pleadings. As such, the plaintiff failed to present his arguments * Rec. Doc. 50.

2 Rec. Doc. 48.

3 Rec. Doc. 46 In re Rodriguez, 695 F.3d 360, 371 (Sth Cir. 2012).

5 td. ® Rec. Doc. 20. prior to the filing of the Report and Recommendation. For this reason, the plaintiff is not entitled to relief under Rule 59(e).

Furthermore, although as a prisoner proceeding without an attorney, the Plaintiff has a right to liberal interpretation of his civil rights pleadings, he is also required to present facts which support a claim as a matter of law. After reviewing the plaintiffs Complaint, as amended, the Court determined that the plaintiff failed to state an ADA/RA claim upon which relief could be granted. Even interpreting the Plaintiff's Complaint liberally, the Court is confident that that plaintiff has not stated a viable ADA/RA claim.

As such, the plaintiff's Motion will be granted in part only to correct the Ruling to reflect that the Plaintiff did file an opposition to the Report and Recommendation. Accordingly, IT IS HEREBY ORDERED that the Plaintiff's Motion’ is GRANTED IN PART, and the Court's Ruling® dated September 3, 2019 is VACATED and WITHDRAWN. A corrected Ruling, noting the filing of the Plaintiff's objection, will be issued.

IT IS FURTHER ORDERED that, in all other regards, the Plaintiff's Motion is DENIED.

Signed in Baton Rouge, Louisiana on October 29, 2019.

eel eigell ot) CHIEF JUD ooh Mlecok UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA Rec. Doc. 49.