United States District Court, W.D. Virginia, Roanoke Division
OPINION & ORDER
K. MOON, SENIOR UNITED STATES DISTRICT JUDGE.
September 18, 2018, I denied Strebe's motion for
preliminary injunction and granted summary judgment for the
defendants. Strebe v. Kanode, No. 7:17cv00321, 2018
WL 4473117 (W.D. Va. Sept. 18, 2018). Strebe, a Virginia
inmate proceeding pro se filed two motions to alter,
amend, or reconsider (Dkt. Nos. 33, 40) pursuant to Rule 59
and/or Rule 60 of the Federal Rules of Civil Procedure. For
the reasons that follow, the motions are
first assess the motion for reconsideration of the denial of
Strebe's motion to amend, Dkt. No. 33.
for reconsideration of an interlocutory order are governed by
Federal Rule of Civil Procedure 54(b), under which “any
order . . . may be revised at any time before the entry of a
judgment adjudicating all the claims and all the parties'
rights and liabilities.” Fed.R.Civ.P. 54(b).
“Thus, when warranted, a district court retains the
power to reconsider and modify its interlocutory judgments at
any time before the final judgment.” Lynn v.
Monarch Recovery Mgmt., Inc., 953 F.Supp.2d 612, 618 (D.
Md. 2013) (citing Am. Canoe Ass'n v. Murphy Farm,
Inc., 326 F.3d 505, 514-15 (4th Cir. 2003)).
of the motion is “committed to the discretion of the
district court, ” Am. Canoe Ass'n, 326
F.3d at 515, and “the goal is to reach the correct
judgment under law.” Netscape Commc'n Corp. v.
ValueClick, Inc., 704 F.Supp.2d 544, 547 (E.D. Va. 2010)
(internal citation omitted). The court may consider reasoning
from Rules 59(e) and 60(b) in deciding whether to grant
relief under Rule 54(b). See Fayettesville Investors v.
Commercial Builders, Inc., 936 F.2d 1462, 1470 (4th Cir.
1991); Lynn, 953 F.Supp.2d at 619 n.22 (collecting
cases applying the analyses of Rules 59(e) and 60(b) to Rule
54(b) reconsiderations). Therefore, a court may consider such
factors as “undue delay, bad faith or dilatory motive
on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, futility of the amendment, etc.” Foman
v. Davis, 371 U.S. 178, 182 (1962).
Strebe's proposed amendment, he sought to add two
retaliation claims against RNCC employees. In the proposed
third claim, he alleges Investigator Horton retaliated
against Strebe for filing the present lawsuit by threatening
Strebe. In the proposed fourth claim, Strebe argues that his
due process rights were violated when Chief of Housing and
Programs A. Kilbourne, Assistant Warden P. White, and Senior
Counselor Walz fired Strebe from his job as an inmate law
library clerk without a hearing. The court denied the
motions. In his motion for reconsideration, Strebe argues (1)
the motion is timely because he submitted the motion to amend
immediately following the actions of the proposed new
defendants; and (2) the claims relate to the underlying
lawsuit. Timeliness is immaterial because the proposed third
claim is unexhausted and the proposed fourth claim is
unrelated to the underlying lawsuit.
the third claim, Strebe alleges Investigator Horton
retaliated in response to Strebe's lawsuit against Warden
Kanode and Director Clarke. Specifically, Investigator Horton
told Strebe to drop his lawsuit against Warden Kanode and
Director Clarke. When Strebe informed Investigator Horton
that he would not comply, Investigator Horton stated that he
would make sure that Strebe would be: fired from his job as a
law library clerk, banned from the law library, charged with
a false infraction, transferred to another institution, and
housed with an offender who would rape Strebe. Another
investigator later approached Strebe, reminded Strebe of
Investigator Horton's threats, and had Strebe write a
statement admitting that Strebe had made false allegations
against a staff member. On November 27, 2017, Strebe was
suspended from his institutional employment due to an
“open investigation, ” but he was not charged
with a disciplinary infraction. After Strebe filed his first
motion to amend, an outside investigator arrived to speak
with Strebe about his allegations, but, according to Strebe,
the investigator was only interested in the threat of sexual
assault. Strebe asserts that he heard Investigator Horton
laughing through the wall during the interview. The laughing
upset Strebe, so he ended the interview and returned to his
the Prisoner Litigation Reform Act (“PLRA”), a
prisoner must fully exhaust available administrative remedies
before bringing a § 1983 action. Porter v.
Nussie, 534 U.S. 516, 524 (2002). An inmate plaintiff is
not required to make an affirmative showing that he has
exhausted his claims pursuant to the prison's grievance
procedure. Jones v. Bock, 549 U.S. 199, 215 (2007).
Nonetheless, “[e]xhaustion has not occurred and
dismissal is warranted when an institution's appeal
process necessarily must continue after the filing of the
complaint.” Germain v. Shearin, 653 Fed.Appx.
231, 234 (4th Cir. 2016) (citing McKinney v. Carey,
311 F.3d 1198, 1199 (9th Cir. 2002) (noting the First,
Second, Third, Seventh, Eleventh, and D.C. Circuits follow
this rule)); see Freeman v. Francis, 196 F.3d 641,
645 (6th Cir. 1999) (“The plain language of the statute
[§ 1997e(a)] makes exhaustion a precondition to filing
an action in federal Court. . . . The prisoner, therefore,
may not exhaust administrative remedies during the pendency
of the federal suit.”); see also Ross v.
Blake, 578 U.S. ___, 136 S.Ct. 1850, 1859 (2016)
(“When an administrative process is susceptible of
multiple reasonable interpretations, Congress has determined
that the inmate should err on the side of
exhaustion.”). Here, Strebe fully admits that his
claims are unexhausted and that he is actively attempting to
litigate this claim and proceed through the grievance
procedure simultaneously. Am. Compl. 2, Dkt. No. 28-1;
Grievance Reports, Dkt. No. 28-3. Therefore, the claim is
premature under the PLRA and I will deny the motion to
reconsider the motion to amend as to his proposed third
the proposed fourth claim is unrelated to the underlying
complaint and ultimately futile because there is no
constitutional due process protection for an institutional
occupation. See Fed. R. Civ. P. 20(a)(2) (discussing
permissive joinder of a defendant). The Due Process Clause
applies when government action deprives an individual of a
legitimate liberty or property interest. Bd. of Regents
of State Colls. v. Roth, 408 U.S. 564, 569 (1972). The
first step in analyzing a procedural due process claim is to
identify whether the alleged conduct affects a protected
interest. See Beverati v. Smith, 120 F.3d 500, 502
(4th Cir. 1997). Here, “[t]he law is clear that [an
inmate does] not enjoy a protected property or liberty
interest in retaining his prison job.” Hinton v.
Diggs, No. 3:09cv469, 2011 WL 2964413, at *2 (E.D. Va.
July 20, 2011); see also Bulger v. United States Bureau
of Prisons, 65 F.3d 48, 49 (5th Cir. 1995) (holding that
“prisoners have no constitutionally protected liberty
or property interests per se in their prison job
assignments”); Backus v. Ward, 151 F.3d 1028,
1028 (4th Cir. 1998) (per curiam) (unpublished) (citing
Bulger and asserting same). Therefore, I will deny
the motion to reconsider the motion to amend as to his
proposed fourth claim as futile and unrelated to the
I will discuss the denial of the motion for preliminary
injunction and the dismissal of Strebe's case.
See Dkt. Nos. 33, 39, 40. A court may amend or alter
a judgment under Rule 59(e) “(1) to accommodate an
intervening change in controlling law; (2) to account for new
evidence not available at trial; or (3) to correct a clear
error of law or prevent manifest injustice.”
Hutchison v. Staton, 994 F.2d 1076, 1081 (4th Cir.
1993). “Importantly, however, a Rule 59(e) motion for
reconsideration may not be used to ‘reargue the facts
and law originally argued in the parties'
briefs.'” Projects Mgmt. Co. v. DynCorp
Int'l, L.L.C., 17 F.Supp.3d 539, 541 (E.D. Va. 2014)
(quoting United States v. Smithfield Foods, 969
F.Supp. 975, 977 (E.D. Va. 1997)). This standard is narrowly
construed, as a Rule 59(e) motion is “‘an
extraordinary remedy which should be used
sparingly.'” Pac. Ins. Co. v. Am. Nat'l
Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1993)
(quoting 11 Wright et al., Federal Practice and Procedure
§ 2810.1, at 124 (2d ed. 1995)); see Durkin v.
Taylor, 444 F.Supp. 879, 889 (E.D. Va. 1977)
(“Whatever may be the purpose of Rule 59(e) it should
not be supposed that it is intended to give an unhappy
litigant one additional chance to sway the judge.”).
the preliminary injunction, Strebe argued that the defendants
denied him access to the courts when they replaced computer
programs with programs that had lesser functionality. I ruled
directly on this matter in the memorandum opinion and Strebe
has not presented an intervening change in controlling law,
new evidence, a clear error of law, or manifest injustice.
See Mem. Op. 15 n.4 (“Strebe is not
constitutionally entitled to any specific word processor,