The opinion of the court was delivered by: Richard W. Roberts United States District Judge
MEMORANDUM OPINION AND ORDER
Pro se plaintiff Linwood A. Williams, Jr. has sued the Court Services and Offender Supervision Agency for the District of Columbia ("CSOSA") and three agency officials alleging sex discrimination and retaliation under Title VII of the Civil Rights Act of 1964. A March 25, 2011 memorandum opinion and order dismissed the complaint on the grounds that Williams failed to file his complaint timely and no equitable relief from that failure was warranted. Williams has filed a motion for reconsideration, arguing that additional facts show that he is entitled to equitable relief from his failure to file timely. The plausible inferences drawn from evidence Williams has provided suggest that Williams has acted diligently to preserve his claim. His motion for reconsideration will be granted, and the order granting the defendants' motion to dismiss will be vacated. However, the March 25th opinion did not address the defendants' arguments concerning naming and serving properly the individual defendants. Because Williams' complaint fails to state a claim against the individual defendants, the motion to dismiss will be granted as to those defendants.
The background of this case is set out fully in Williams v. Court Servs. & Offender Supervision Agency for D.C. ("CSOSA"), 772 F. Supp. 2d 186 (D.D.C. 2011). Briefly, Williams served as a Supervisory Community Supervision Officer with CSOSA. He alleged that after he filed complaints against the agency, the defendants retaliated against him and ultimately terminated him. Williams appealed his termination to the Merit Systems Protection Board ("MSPB"), and an MSPB administrative judge affirmed the agency action. The full MSPB board denied Williams' petition to reconsider the administrative judge's decision, and Williams claims to have received notice of that order on June 27, 2008. On July 28, 2008 ---- the last day of the 30-day period allowed by law within which he could file a civil action ---- he filed in this court an improperly formatted civil complaint and a petition to proceed in forma pauperis ("IFP"), which tolled the filing deadline until the motion was denied on August 5, 2008. Williams filed a proper complaint on September 4, 2008*fn1 and paid the filing fee on September 5, 2008. Id. at 187. Williams named CSOSA, along with its former director, Paul A. Quander, Jr., deputy associate director McKinley Rush, and branch chief William Ashe, as defendants. Williams served CSOSA by mail sent to the United States Attorney General and the United States Attorney for the District of Columbia. He attempted to serve Quander, Rush, and Ashe by mail sent to the address of CSOSA's main building.
The March 25th opinion and order granted the defendants' motion to dismiss on the grounds that Williams did not timely file his complaint and that he provided no explanation for why he waited twenty-four days ---- the time between the date on which he was presumed to have received notice that his motion to proceed IFP had been denied and the date on which he refiled his complaint ---- to pursue his claim. Williams argues that reconsideration is warranted because he has presented new evidence that shows he was "diligent by filing the complaint with[in] the week after learning about [the] denial of [his] request to waive the filing fees." (Pl.'s Mot. for Reconsideration and to Alter or Amend J. ("Pl.'s Mot.") at 3.) The March 25th opinion did not address the defendants' additional arguments for dismissing the individual defendants that the plaintiff improperly named them and in any event failed to serve them properly.
A court may alter or amend a final judgment under Federal Rule of Civil Procedure 59(e). Altering or amending a final judgment is discretionary, and a court need not grant a Rule 59(e) motion unless it "finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Ciralsky v. CIA, 355 F.3d 661, 671 (D.C. Cir. 2004) (quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)). Such a motion is "not routinely granted." Williams v. Savage, 569 F. Supp. 2d 99, 108 (D.D.C. 2008). New evidence that could justify altering or amending a final judgment does not include evidence that a party could have presented before a court entered the judgment. See Artis v. Bernanke, 256 F.R.D. 4, 6 (D.D.C. 2009) (concluding that the plaintiffs' "recent recollections" could not be considered new evidence because "[p]laintiffs fail to explain why these statements could not have been presented when the defendant's motion to dismiss was originally pending before the Court"). However, a pro se plaintiff may file supplemental materials with a motion for reconsideration to clarify his claims. See Greenhill v. Spellings, 482 F.3d 569, 572 (D.C. Cir. 2007); Anyanwutaku v. Moore, 151 F.3d 1053, 1054 (D.C. Cir. 1998) (permitting a pro se plaintiff to file a motion for reconsideration with an "addendum" to the motion that clarified the claims in the plaintiff's original complaint).
I. TIMELINESS OF COMPLAINT
In his opposition to the defendants' motion to dismiss,
Williams claimed that he "expeditiously refiled his modified complaint with the Court on September 5, 2008" right after receiving notice that his motion to proceed IFP was denied. (Pl.'s Am. Mem. of Law in Supp. of His Opp'n to Defs.' Mot. to Dismiss ("Pl.'s Opp'n to Mot. to Dismiss") at 3.) To support his claim of speedy action, Williams cited a September 4, 2008 date stamp appearing on a copy of the notice that leave to proceed IFP was denied. However, the date stamp did not support Williams' receipt of notice on that date, as he had attached a copy of that notice as an exhibit to the complaint, and the Clerk's Office date stamped it as the first page of the attachment. Noting that "Williams provide[d] no other evidence of when he received actual notice of the denial," the March 25th opinion presumed that Williams received notice of the denial three days after the Clerk posted the order denying leave to file. CSOSA, 772 F. Supp. 2d at 190 (citing Baker v. Henderson, 150 F. Supp. 2d 17, 21 n.3 (D.D.C. 2001) (noting that in the absence of evidence to the contrary, a mailing is presumed to be received three days after the date of mailing)). The March 25th opinion also noted that "Williams provide[d] no explanation for why he waited an additional twenty-four days [after the date on which he was presumed to have received notice] to refile his complaint." Id. Williams' assertion that his repeated visits to the Clerk's Office to check on the status of his complaint demonstrated his diligence was discounted on the ground that he provided no evidence that he made any of those visits to the Clerk's Office between the date on which he was presumed to have received notice and the date on which he refiled the complaint. Id.
Williams now presents unrebutted evidence in the form of a sworn affidavit that he "became aware" that his motion to proceed IFP had been denied as a "result of a random call to the clerk's office approximately three to four business days before the complaint was re-filed. . . . I did not obtain a copy of Judge Leon's Notice until approximately three to four business days before I re-filed the complaint on September 4, 2008." (Pl.'s Aff. at 2.) Although this affidavit could be characterized as evidence that Williams could have presented when the defendants' motion to dismiss was pending, Williams is entitled to some latitude as a pro se plaintiff, and the affidavit will be construed instead as supplemental evidence that clarifies his claims. See Anyanwutaku, 151 F.3d at 1054. Crediting Williams' affidavit as new evidence also is appropriate in light of the March 25th opinion's reliance on the absence of evidence regarding when Williams received notice that his motion for leave to proceed IFP had been denied and the lack of explanation from Williams about why he waited until September 4 to refile his complaint.
The defendants argue that Williams' affidavit asserting that he first learned only three or four business days before September 4, 2008 that his IFP motion was denied is inconsistent with the factual assertions he made in his opposition to the defendants' motion to dismiss, in which he argued that he refiled his complaint "the very next day" after receiving notice that his motion for leave to proceed IFP was denied. (Defs.' Mem. of P. & A. in Opp'n to Pl.'s Mot. for Reconsideration ("Defs.' Mem.") at 4 (citing Pl.'s Opp'n to Mot. to Dismiss at 5).) A court need not credit an account presented in a motion for reconsideration that plainly contradicts an account previously presented to the court. See Artis, 256 F.R.D. at 6 ("Plaintiffs fail to explain . . . why the Court should rely on these more recent recollections [presented in a motion for reconsideration], particularly when they contradict other evidence already in the record.")
Williams' potentially inconsistent statements do raise a concern. What he said on page 3 of his opposition to the defendants' motion to dismiss was that he filed for a "waiver of the filing fee . . . which was endorsed by the Honorable Judge Leon on August 5, 2008, and denied by this Court on September 4, 2008. . . . Upon receiving the motion that was denied by this Court, Plaintiff expeditiously refiled his modified complaint with the Court on September 5, 2008[.]" He added on page 5: "On July 28, 2008, and September 5, 2008, i.e., the thirty-first and the very next day; respectfully, after this Honorable Court denied the Leave for Filing." (Pl.'s Opp'n to Mot. to Dismiss at 3, 5.)
From those representations, the most the March 25th opinion could say was that "Williams implies that he received notice of the August 5, 2008 denial on September 4, 2008" (emphasis added). CSOSA, 772 F. Supp. 2d at 190. Indeed, he had never explicitly said he received notice on September 4, 2008. The inference drawn by the March 25th opinion, albeit not unreasonable, stemmed from the syntactical imprecision of Williams' filing which should not be held against him or produce a litigation-ending result. Thus, Williams' account here does not plainly contradict the account he presented in opposition to the defendants' motion to dismiss. The unrebutted affidavit Williams has presented will be accorded a ...