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Harrison v. Lappin

September 27, 2007


The opinion of the court was delivered by: James Robertson United States District Judge


This matter is before the Court on Harrison's motion for reconsideration of my order of November 7, 2006 [Dkt. #54-55; 2006 WL 3246400]. The motion will be denied for the reasons set forth below.


Harrison "was convicted in the [United States District Court for the] Eastern District of Texas, and Judgment was entered on or about January 21, 2003." Supplemental Complaint ("Supp. Compl.") ¶ 4. He appealed to the United States Court of Appeals for the Fifth Circuit. Id. The Fifth Circuit allowed him to represent himself on appeal and forwarded the appellate record to the warden of the Federal Bureau of Prisons ("BOP") facility where Harrison was incarcerated at that time, with directions "to make the Record available to [him] for his preparation of his Main Brief on appeal." Id. ¶¶ 4, 5. The materials received from the Fifth Circuit did not contain a copy of Harrison's presentence investigation report ("PSR"), and he asked the clerk to send him a copy. Id. ¶ 6. When it arrived, Harrison's case manager "refused to give the PSR package to [plaintiff]," id. ¶ 8, evidently in reliance on BOP Program Statement 1351.05 ("P.S. 1351.05"), Release of Information (9/19/2002). See id. ¶ 10. Harrison filed grievances in an unsuccessful effort to obtain a copy of his PSR. Id. ¶¶ 9-13.*fn1 The Fifth Circuit affirmed Harrison's conviction on September 23, 2004, Plaintiff's Opposition and Response to Defendants' Motion to Dismiss or Transfer ("Pl.'s Opp'n") ¶ 11, and remanded the matter to the district court for resentencing. United States v. Harrison, Crim. No. 03-40160, 2007 WL 1814208, at *2 (5th Cir. June 21, 2007) (per curiam). The outcome of the matter on remand is not of record.

Harrison alleges that, on his appeal, he "was raising significant sentencing issues which made his possession and unfettered usage of the PSR critical to his being able to properly and adequately raise these issues."*fn2 Supp. Compl. ¶ 6. BOP's refusal to allow him to possess a copy of his PSR, Harrison alleges, violated his rights under the First, Fifth, and Sixth Amendments to the United States Constitution. Id. ¶¶ 11-14; Pl.'s Opp'n ¶¶ 44-45.


A. Plaintiff's Motion for Reconsideration is Construed as a Motion Under Rule 59(e) of the Federal Rules of Civil Procedure

Harrison mailed his motion within 10 days of entry of the November 7, 2006 Memorandum Opinion and Order, and the Court deems his motion filed on the date it was mailed. See Houston v. Lack, 487 U.S. 266, 276 (1988) (notice of appeal filed when petitioner delivered it to prison authorities for forwarding to Clerk of Court). Accordingly, the Court construes this motion for reconsideration as one filed under Rule 59(e) of the Federal Rules of Civil Procedure. See Derrington-Bey v. District of Columbia Dep't of Corr., 39 F.3d 1224, 1226 (D.C. Cir. 1994) (treating motion for reconsideration as a Rule 59(e) motion if it is filed within 10 days of entry of the challenged order).

Motions under Rule 59(e) are disfavored, and relief under the rule is granted only when the moving party establishes extraordinary circumstances. See Anyanwutaku v. Moore, 151 F.3d 1053, 1057 (D.C. Cir. 1998) (noting that Rule 59(e) motions generally not granted absent intervening change of controlling law, availability of new evidence, or need to correct clear error or prevent manifest injustice). A Rule 59(e) motion is not a second opportunity to present arguments upon which the Court already has ruled or to present arguments that could have been presented earlier. See W.C. & A.N. Miller Co. v. United States, 173 F.R.D. 1, 3 (D.D.C. 1997), aff'd sub nom. Hicks v. United States, No. 99-5010, 1999 WL 414253 (D.C. Cir. May 17, 1999).

B. Program Statement 1351.05

P.S. 1351.05 provides in relevant part:

(d) Federal Presentence Reports (PSR) and Statements of Reasons (SOR) from Judgments in Criminal Cases.

(1) For safety and security reasons, inmates are prohibited from obtaining or possessing photocopies of their PSRs, SORs, or other equivalent non-U.S. Code sentencing documents (e.g., D.C., state, foreign, military, etc.). Inmates violating this provision are subject to disciplinary action.

P.S. 1351.05 at 15. PSRs received by mail are treated as contraband. Id. "Inmates needing a copy of their PSRs [] for filing as an attachment in a court case may obtain, complete, and submit to the Court an Inmate Request For ...

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