UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ALEXANDER OTIS MATTHEWS, Plaintiff ,

v. FEDERAL BUREAU OF INVESTIGATION, Defendant. Civil Action No. 15-569 (RDM)

MEMORANDUM OPINION AND ORDER Despite the multitude of briefs, opinions, and orders in this n early three-year-old case, before the Court are two motions requesting a n extension of tim e to pay the initial filing fee. Dkt. 38; Dkt. 40. For the reasons e xplained below, the Court w ill construe these motions as requests under Federal Rule of C ivil Procedure 59(e) to alter o r amend the Court’s earlier dismissal of this action, couple d with requests under Federal R ule of Civil Procedure 6(b) for an extension of time. The Court will GRANT the motion docketed by the Court on July 31, 2017,
DENY as moot the motion docketed by the Court on July 6, 2017, and s et a new deadline for payment of the filing fee. The Court begins by briefly expl aining how this situation came to be. In the reply brief filed by Defendant Federal Burea u of Investigation (“FBI”) in s upport of its motion for summary judgment, the FBI asserted for the first time that pro se prisoner plaintiff Alexander Otis Matthews had accumulated more than three “strikes” under 28 U.S .C. § 1915(g) before initiating this action. Dkt. 28; see also Dkt. 35 at 1. The Court dismis sed the case, Dkt. 31, but late r vacated that opinion on the ground that, after finding a three- strike violation, a court should2 generally permit the plaintiff an opportunity to pay the full f iling fee before outright dismissal, Dkt. 35. On May 5, 2017, the Court ordered Matthews to pay the full filing fee on or before June 5, 2017. Id. at 10. Having not timely received the fee, on June 12, 2017, t he Court dismissed the action without prejudice for fa ilure to prosecute. Dkt. 36. On June 19, 2017, the Clerk of Court received a money order sen t on Matthews’s behalf purporting to pay the full $400 filing fee. See Dkt. 37 at 1. The money order was dated June 15, 2017, and sent alongside a cove r letter dated June 16, 2017. Id. The money order was therefore placed in the mail a minimum of eleven days after the deadline for payment. Id. The Court held that Matthews had not shown good cau se for his late payment und er Rule 6(b), nor had he demonstrated sufficient grounds f or relief from the Court’s fin al judgment under Rule 60(b). Id. Accordingly, the Court ordered that the Clerk return the money order to the sender. Id. at 2. On July 6, 2017, the Clerk of Court received a motion from Matt hews seeking an enlargement of time to pay t he filing fee . Dkt. 38. Matthews dated the motion June 30, 2017, the prison stamped it as having been reviewed on July 2, 2017, and the postmark is dated July 3,
2017. See id. at 7–9. In that motion, Matthews alleges that he had previously sent tw o motions seeking an extension of time to pay the filing fee, but prison officials prevented the Court’s timely receipt of the filings. Id. at 1–2. He states that in the a ftermath of his son’s death, he applied for a furlough to attend the funeral. Id. at 2. However, the Bureau of Prisons (“BOP”) denied the request, and instead p laced him in the Special Housi ng Unit (“SHU”) on May 16, 2017, while it conducted an inves tigation of an “alleged irregu larity” in his furlough paperwork.
Id. at 2–3. He argues that he attemp ted to send a motion for an ex tension of time to pay the filing fee while in the SHU on May 18, 2017, that should have b een received within the Court’s3 original payment deadline. Id. at 3. Matthews states that aro und that time he a lso sent a let ter to his family requesting that they pay the fee. 1 Id. Matthews presumed that the letters had been sent, until at some point during the first week of June 2017 he was questione d by BOP investigators about the “irregularities” on his application for furlough. Id. at 3–4. According to Matthews, w hile he was being questioned, he “observed in an open file being r eviewed by [the investigator] the letters to the Court and to his family that [he] had mailed on May 18[], 2017.” Id. at 4. Matthews states that he then sent a second motion for an extension of t ime to the Court after this discovery, and included information regarding the dela y in processing his mail. Id. Neither motion was docketed prior to the July 6, 2017 motion. 2 On July 13, 2017, the Court ordere d the government to respond t o Matthews’s July 6, 2017 motion. Minute Order (J uly 13, 2017). In opposing the mo tion, the government does not contradict any of the factual alle gations made regarding his ma il, but rather argues “that he has no grounds for reconsideration” of a final judgment under Firestone v. Firestone , 76 F.3d 1205, 1208 (D.C. Cir. 1996). Dkt. 39 at 1; see id. at 1–3. On July 31, 2017, the Court docketed a further motion for an enlargeme nt of time to pay the filing fee from Matthews. Dkt. 40. Matthews dated this motion J une 6, 2017, and it was received by the Clerk of Court on June 12,
2017. Id. at 1, 8. It appears to be the sec ond of the motions sent from the SHU that Matthews

1 This letter appears to have eventually led to the mailing of the $400 money order received on June 19, 2017.

2 Although Matthews was free, given t hat the Court dismissed th e case without prejudice, to file a new complaint containing the s ame allegations, he requests th at the Court accept the fee and “not make him begin this acti on anew” because “[i]t would be to o difficult for the plaintiff based on his current situation, with no typewriter and difficult acce ss to the [l]aw [l]ibrary.” Dkt. 38 at 6. He also asks the Court to inv estigate or refer for investig ation the alleged mail tampering. Id. at 5.4 referenced in the filing received on July 6, 2017. It makes th e same allegations as the July 6, 2017 motion, but also lays out in grea ter detail Matthews’s req uest that the Court refer the alleged interference with his ma il to the Postal Service’s Insp ector General. Id. at 7. Finally, on August 7, 2017, Matthews filed a reply to the government’s opposition to his July 6, 2017 motion. Dkt. 41. He notes that a motion similar to those he filed in this Court was granted in a habeas action he file d in the Distri ct of New Hamp shire, and he reiterates his request that the case not be closed becau se of his concern that startin g the action over again would deny him any chance of accessing the information he seeks prior to t he resolution of that habeas petition. Id. at 2–3. Before turning to the merits of M atthews’s arguments, the Courtbriefly addresses the tangle of dates relevant to the t wo motions presently before th e Court. As noted above, the motion received and docketed on July 6, 2017, Dkt. 38, was in f act received after the motion docketed on July 31, 2017, Dkt. 40. That later-docketed motionwas received by the Clerk of Court on June 12, 2017, Dkt. 40 at 1, the same day the Court is sued its order dismissing the case for failure to pay the filing f ee, Dkt. 36. Further complicati ng the situation, t he dates on which the motions were received are not in fact the dates on which th e motions were filed, because the “prison mailbox rule” requi res the Court treat a pro se prisoner motion as filed once the prisoner turns the document over to prison officials for mailing. See Blount v. United States , 860 F.3d 732, 741 (D.C. Cir. 2017). Neither par ty addresses when exactl y these motions were “delivered . . . to the prison authorities for forwarding to the court cle rk,” Houston v. Lack , 487 U.S. 266, 276 (1988), but given when the documen ts were received, it appe ars they were mailed soon after Matthews dated them. Ultimately, however, this knot can be lef t alone, because even construing the case’s chronology in the manner least favorable to Matthews , he still prevails.5 To explain why, the Court begins by examining the legal bases f or Matthews’s motions. Matthews has not clear ly articulated the R ule or Rules under wh ich he moves to reopen the Court’s judgment dismissing thi s case. Given the prison mailbo x rule, both motions were filed within twenty-eight days of t he Court’s June 12, 2017 order dis missing the case, but after the June 5, 2017 deadline for payment of the filing fee. 3 Compare Dkt. 35 (setting payment deadline of June 5, 2017), with Dkt. 38 (requesting extension of time no earlier than June 30, 2017), and Dkt. 40 (requesting extension of time no earlier than June 6, 2 017). For that reason, the Court construes them as motions under Rules 59(e) and 6(b) in which M atthews seeks to vacate the dismissal of the action and re quests an extension of time to pa y the filing fee. See Emory v. Sec’y of Navy , 819 F.2d 291, 293 (D.C. Cir. 1987) (holdi ng the treatment of a filing as a Rule 59(e) motion to be “appropriate even though the movant does not specify under which rule relief is sought, because [a]ny motion that draws into question the co rrectness of the judgment is functionally a motion under Civil Rule 59(e), whatever its labe l” (internal quotation marks and citation omitted)); McMillian v. District of Columbia , 233 F.R.D. 179, 179 n.1 (D.D.C. 2005) (in a similar situation in which re lief was sought from dismissal o f a case for having missed a deadline for showing cause, treat ing a motion for an extension of time under Rule 6(b) as a motion under Rule 59(e)); see also Firestone , 76 F.3d at 1207–08 (describing a similar situation

3 The motion docketed on Jul y 31, 2017, was filed (under the pr ison mailbox rule) several days before the Court’s order dismissing the case, albeit st ill after the deadline to pay the filing fee had passed. Compare Dkt. 40 at 1 (noting the mo tion was received on June 12, 2017), and id. at 8 (stating the motion was sent on June 6, 2017), with Dkt. 35 (ordering payment of the filing fee on or before June 5, 2017). Having filed such a request before judgment was entered does not, however, change the fact that th e case was dismissed. Any moti on seeking relief, therefore, requires that the judgment first be vacated, although the filin g of a request f or an extension of time prior to the Court’s June 12, 2017 order further supports the Court’ s conclusion that relief is warranted.6 in which motions under Rule 59(e) and Rule 15(a) acted in conce rt to seek relief from a court’s earlier dismissal of the complaint). A motion under Rule 59(e) “is dis cretionary and need not be gra nted unless the district court finds that there is an i ntervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manif est injustice.” Ciralsky v. CIA , 355 F.3d 661, 671 (D.C. Cir. 2004) (intern al quotation mark omitted ). Such motions “cannot be used to raise arguments which c ould, and should, have been made befo re the judgment issued.” Kattan by Thomas v. District of Columbia , 995 F.2d 274, 276 (D.C. Cir. 1993), as amended (June 30, 1993) (quoting Fed. Deposit Ins. Corp. v. Meyer , 781 F.2d 1260, 1268 (7th Cir. 1986)). Relief under Rule 59(e) is genera lly unavailable for situations that “might have been avoided through the exercise of due diligence.” Fox v. Am. Airlines, Inc. , 389 F.3d 1291, 1296 (D.C. Cir. 2004); see also Ciralsky , 355 F.3d at 673. In situations such as this one, the movant “must first satisfy Rule 59(e)’s more stri ngent standard,” before then meet ing the requirements of Rule 6(b).
See Firestone , 76 F.3d at 1208 (describing analogous two-step analysis in co ntext of Rule 59(e) and Rule 15(a) motions). Matthews’s motions meet the ri gorous standard of Rule 59(e). T he Court has been presented with information regar ding the delay in its receipt o f the filing fee that was unavailable at the time it issued its order dismissing this case. Matthews states that he attempted to request an extension of time and to arr ange for the payment of the fili ng fee within the Court’s earlier deadline, but was thwarted in his efforts because of the prison ’s delay in sending his mail while he was in the SHU. See, e.g. , Dkt. 38 at 1–6. Although the Court ne ver received the extens ion request that Matthews asserts that he delivered to prison offic ials before the filing deadline, the government does not dispute Matthew s’s description of the relev ant events. Dkt. 39 at 1–3.7 That the government “does not believe that Plaintiff will be ab le to meet his burden on reconsideration,” id. at 3, fails to address the substance of Matthews’s motions. Wh ile the Court is unable to assess fully the truth of Matthews’s allegations, the timing of the Clerk’s receipt of the filing fee from a third party and the Clerk of Court’s rece ipt on June 12, 2017, of a motion dated June 6, 2017—which mirrors wha t Matthews described as hav ing sent while in the SHU— corroborates his account. Matthews’s account of his efforts to comply with the Court’s order in a timely manner, which the government does not challenge, weigh s heavily in favor of vacating the judgment. The Court is further persuaded by M atthews’s argument that dism issing the suit and requiring him to start over woul d work an injustice because of the effect such a delay would have on other pending litigation. 4 Dkt. 38 at 6. Without venturing in to whether Matthews is lik ely to be successful in getting the documents he seeks or whether such documents would be helpful in his other suit, the Court agrees that he has otherwise “been ti mely and diligent in prosecuting this action.” Id. Given this litigation’s lengthy history and the Court’s famili arity with the unusual posture, the Court also agrees t hat requiring Matthews to start from scratch by filing a new complaint raises the possibility of further delay in the resolu tion of his claims. Taken together, Matthews’s motion is un like the more typical Rule 59(e) case in which an attorney’s neglect is found insufficient to war rant reopening a case. See, e.g. , McMillian , 233 F.R.D. at 182. His unrebutted allegations of delay be yond his control and the unfa irness that would be worked by beginning again this three-year-old litigation suffice to meet Rule 59(e)’s demanding burden.

4 The Court notes that governme nt counsel took the commendable step of assisting Matthews with photocopying and assembling the m aterials from this case t o aid him refiling the action.8 Having determined that Matthews m eets the requirements of Rule 59(e), the Court next considers Rule 6(b). A Rule 6(b) motion requesting an extensio n of time made after time has expired may only be granted upon a s howing of “excusable neglec t.” Fed. R. Civ. P. 6(b)(1)(B).
In Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship , 507 U.S. 380 (1993), the Supreme Court delineated four factors f or evaluating whether a movant h as demonstrated excusable neglect. Those factors are “(1) the danger of prejudice to the party opposing the modification, (2) the length of de lay and its potential impact on judicial pr oceedings, (3) the reason for the delay, including whether it was wi thin the reasonable control o f the movant, and (4) whether the movant acted in good faith.” In re Vitamins Antitrust Class Actions , 327 F.3d 1207, 1209 (D.C. Cir. 2003) (citing Pioneer , 507 U.S. at 395). The Court concl udes that Matthews has sati sfied this standard as well. First, the government has not s uggested any prejudice will resu lt from granting Matthews additional time to pay the filing fee, nor could it given that denying the motion would essentially put the government in the same pos ture (albeit under a new dock et number). The subject matter of this action and how it will likely be resolved—a request und er the Freedom of Information Act and summary judgment, respec tively—also weigh against a fin ding that accepting a delayed payment would prejudice the government. Second, the delay of e leven days in payment of the filing fee was brief. Dkt. 37. Mor eover, this delay was Matth ews’s first late filing, and does not present the sort of “pattern tha t could, taken together, burdenjudicial proceedings.” See Cohen v. Bd. of Trs. of the Univ. of the D.C. , 819 F.3d 476, 480 (D.C. Cir. 2016). Third, for the reasons described in the Court’s analys is of Rule 59(e), Matthews has o ffered sufficient reason for the delay; indeed, although the motion never reached the Court, the Court credits Matthews’s assertion that he attempted to f ile an extension motion before the deadline. Fourth, there is no9 evidence of bad faith on Matthew s’s part. Thus, all of the Pioneer factors weigh in favor of granting Matthews’s Rule 6(b) r equest for additional time to pa y the filing fee. Having considered “all relevant circums tances surrounding the failure to act,” the Court concludes that Matthews has met Rule 6(b)’s requirements. Id. (internal quotation marks omitted).
CONCLUSION For these reasons, the relief sought in the motion docketed on July 31, 2017, Dkt. 40, is hereby GRANTED , and the motion docketed by t he Court on July 6, 2017, Dkt. 38 , is hereby
DENIED as moot. It is hereby ORDERED that the Court’s June 12, 2017 Order dismissing the case, Dkt. 36, is VACATED . It is further ORDERED that Matthews pay t he balance of the filing fee on or before March 9, 2018, or the Court will dismis s the case without prejudice.
SO ORDERED

.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: January 30, 2018