United States District Court, M.D. Tennessee, Columbia Division
WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE.
the Court are Whipple's “Motion to Reconsider
Denial of Relief from Interference with Access to Court or To
Certify the Interlocutory order at ¶ 255 as Eligible for
Immediate Appellate Review and Abeyance while Review
Pending” (Doc. No. 258); and the Report and
Recommendation of the Magistrate Judge
(“R&R”) (Doc. No. 245).
following reasons, Whipple's motion to reconsider (Doc.
No. 258) will be denied and the R&R (Doc. No. 245) will
be adopted. Accordingly, Whipple's Motion for Partial
Summary Judgment (Doc. No. 158) will be denied,
Defendants' Motion for Summary Judgment (Doc. No. 201)
will be granted, and this action will be dismissed.
Zenas Whipple, III filed this action pro se,
asserting claims for First Amendment retaliation and
violation of his Due Process rights. On August 21, 2017, the
Magistrate Judge issued an R&R, recommending that
Whipple's Motion for Partial Summary Judgment (Doc. No.
158) be denied, Defendants' Motion for Summary Judgment
(Doc. No. 201) be granted, and this action be dismissed.
(Doc. No. 245.) The Magistrate Judge stated that objections
must be filed within fourteen days of service of the R&R.
(Id. at 21.) Because Whipple is a pro se
litigant, the Court adds three days to the objection period
to account for service by mail. See Fed R. Civ. P.
6(d). Thus, the initial deadline for Whipple to file
objections was September 7, 2017.
September 5, the Clerk's office received Whipple's
motion stating that he did not have enough money in his
prison trust account to view the cases cited in the R&R.
(Doc. No. 246.) He requested copies of said cases and an
extension of time to file objections. (Id. at 1.) On
September 7, the Court granted Whipple's motion and
ordered Defendants to “ensure that Plaintiff has access
to the cases cited in the Magistrate Judge's Report and
Recommendation.” (Doc. No. 248.) The Court also granted
Whipple an extension of time in which to file objections
until September 19, 2017. (Id.) Again, accounting
for an additional three days for service by mail,
see Fed R. Civ. P. 6(d), Whipple's extended
deadline to file objections was September 22, 2017. Whipple
signed an acknowledgment that he received copies of all of
the cases cited in the Magistrate Judge's Report and
Recommendation on September 9, 2017. (Doc. No. 257-1.)
in the day on September 7, the Clerk's office received
Whipple's motion requesting that the Court order prison
officials to allow him “Westlaw” access and
extend the time for him to file objections to the R&R
until fourteen days after he was provided such access
(“September 7 Motion”). (Doc. No. 251 at 12.) On
September 12, the Court denied Whipple's motion in light
of its previous order that ensured Whipple had the access he
requested to the cases cited in the R&R and granted him
an extension to file objections. (Doc. No. 255.)
Motion to Ascertain Status (Doc. No. 256) of his motion filed
at Doc. No. 251 is DENIED AS MOOT.
WHIPPLE'S MOTION TO RECONSIDER
September 18, 2017, the Clerk's office received
Whipple's motion to reconsider the Court's September
12 Order. (Doc. No. 258.) Whipple argues that the relief
granted in the Court's September 7 Order-access to the
cases cited in the R&R and an extension of the objection
period-did not do away with the need for the relief requested
in Whipple's September 7 Motion- “Westlaw”
access and an extension of the objection period until
fourteen days after he was provided such access.
(Id. at 4.) Thus, Whipple urges the Court to
reconsider its September 12 Order denying Whipple's
September 7 Motion as moot.
Court's September 12 Order is an interlocutory order.
Reconsideration of an interlocutory order is appropriate
where there is “(1) an intervening change of
controlling law; (2) new evidence available; or (3) a need to
correct a clear error or prevent manifest injustice.”
Louisville/Jefferson Cty. Metro. Gov't v. Hotels.com,
L.P., 590 F.3d 381, 389 (6th Cir. 2009) (quoting
Rodriguez v. Tenn. Laborers Health & Welfare
Fund, 89 F. App'x 949, 959 (6th Cir. 2004)). Whipple
does not rely on a change in law or new evidence, so the
Court construes his motion as seeking to “correct a
clear error or prevent manifest injustice.” Whipple has
not demonstrated that it was a clear error of law or will
result in manifest injustice to decline to specifically order
prison officials to give him “Westlaw” access.
“[P]rison law libraries and legal assistance programs
are not ends in themselves, but only the means for ensuring
‘a reasonably adequate opportunity to present claimed
violations of fundamental constitutional rights to the
courts.'” Lewis v. Casey, 518 U.S. 343,
350 (1996) (quoting Bounds v. Smith, 430 U.S. 817,
825 (1977)). The federal constitution “guarantees no
particular methodology but rather the conferral of a
capability-the capability of bringing contemplated challenges
to sentences or conditions of confinement before the
courts.” Id. at 356.
Whipple has demonstrated throughout the course of this action
that he is able to present his claims to the Court. Whipple
does not argue that he has been denied all access to legal
materials, just that his access is inadequate to file
objections to the R&R. However, since the Magistrate
Judge filed the Report and Recommendation on August 21, 2017,
Whipple has filed seven motions (Doc. Nos. 246, 249, 251,
252, 254, 256, 258), two of which include sophisticated
citations to legal authority (Doc. Nos. 251, 258). Further,
accounting for the extension of time and the additional days
for pro se litigants to account for service by mail,
Whipple had thirty-two days to file objections. He has not
done so. Thus, the timeline and filings in this case reflect
that Whipple has had a “reasonably adequate
opportunity” to draft and file objections. See
Lewis, 518 U.S. at 350.
there is not any basis to reconsider the Court's
September 12 Order. In his Motion, Whipple alternatively
requests that the Court certify that the September 12 Order
is eligible for immediate appellate review. (Doc. No. 258 at
5.) However, this issue is moot because this is the final
order in this action. For these reasons, Whipple's
“Motion to Reconsider Denial of Relief from
Interference with Access to Court or To Certify the
Interlocutory order at ¶ 255 as Eligible for Immediate
Appellate Review and Abeyance while Review Pending”
(Doc. No. 258) is DENIED.
MAGISTRATE JUDGE'S REPORT ...