Pough

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

LANCE POUGH, ) Case No. 1:24-cv-2016

)

Plaintiff, ) Judge J. Philip Calabrese

)

v. ) Magistrate Judge

) James E. Grimes, Jr.

STEVE WEISHAR, et al., )

)

Defendants. )

)

OPINION AND ORDER

Plaintiff Lance Pough, an inmate representing himself, filed suit under

42 U.S.C. § 1983 against Lt. John Faltay and Investigator Steve Weishar alleging

that each violated his federal constitutional rights. In an opinion and order dated

February 9, 2026, the Court dismissed Plaintiff’s claims against each Defendant for

different reasons. (ECF No. 20.) Pursuant to Rule 59(e), Plaintiff seeks

reconsideration of the judgment dismissing his lawsuit. (ECF No. 25.)

At the outset, the Court notes that, under Section 9.M. of its Civil Standing

Order (available here on the Court’s website), the Court limits any motion for

reconsideration to two pages and will request briefing if it needs further explanation

of the basis for the motion. The Court adopted this approach to minimize the burden

associated with re-litigating matters, particularly in light of the high standard for

reconsideration and the limited circumstances in which it is appropriate. Plaintiff’s

motion fails to comply with the Court’s Standing Order. That failure suffices to deny

the motion. In any event, the motion fails on its merits for the reasons that follow.

ANALYSIS

Under Rule 59, a court may alter or amend the judgment where there is a clear

error of law, newly discovered evidence, or an intervening change in controlling law

or to prevent manifest injustice. GenCorp, Inc. v. American Int’l Underwriters, 178

F.3d 804, 834 (6th Cir. 1999) (citations omitted). Such relief constitutes an

extraordinary remedy reserved for exceptional cases. Hines v. Commissioner of Soc.

Sec., 414 F. Supp. 3d 1080, 1081 (S.D. Ohio 2019) (citations omitted). It is not an

opportunity to re-argue matters or “to raise arguments which could, and should, have

been made before judgment issued.” Sault Ste. Marie Tribe of Chippewa Indians v.

Engler, 146 F.3d 367, 374 (6th Cir. 1998) (quoting Federal Deposit Ins. Corp. v. World

Univ. Inc., 978 F.2d 10, 16 (1st Cir. 1992)). Justifying reconsideration requires a

moving party to: (1) demonstrate an intervening change in the controlling law; (2)

establish that new evidence is available; or (3) prove that a clear error occurred or

reconsideration is necessary to prevent manifest injustice. See Louisville/Jefferson

Cnty. Metro. Gov’t v. Hotels.com, L.P., 590 F.3d 381, 389 (6th Cir. 2009). A district

court retains the discretion to entertain such a motion. Rodriguez v. Tennessee

Laborers Health & Welfare Fund, 89 F. App’x 949, 959 n.7 (6th Cir. 2004).

I. Exhaustion and the Statute of Limitations

Plaintiff argues that his claims against Lt. Faltay are timely because he filed

within two years of exhausting his remedies through the prison’s grievance process.

(ECF No. 25, PageID #212.) He maintains that he exhausted his administrative

remedies on September 14, 2022. (Id., PageID #213.) As the Court explained,

however, Mr. Pough did not file his complaint until November 18, 2024. (ECF No. 20,

PageID # 185–86.) Accordingly, even using the accrual date for which he argues in

his motion, Plaintiff’s complaint is untimely, and the statute of limitations bars

Plaintiff’s claims against Lt. Faltay. Nothing in the motion for reconsideration

demonstrates an error of law or manifest injustice in the Court’s ruling.

II. Equitable Tolling

To try to invoke equitable tolling to make his claims against Investigator

Weishar timely, Plaintiff provides various documents as exhibits. He relies on them

to argue that he was prevented from timely filing suit through no fault of his own.

(ECF No. 25, PageID #214–16.) Specifically, Plaintiff claims that he was unable to

get a form to apply for in forma pauperis status the law library or the Clerk, which

forced him to file the original complaint without the necessary application for in

forma pauperis status. (Id., PageID #214–20.) But these documents were all

previously available to Mr. Pough, and nothing prevented him from submitted a

handwritten application to proceed in forma pauperis, as he did in connection with

his notice of appeal. (ECF No. 24.) In any event, as the Court previously noted (ECF

No. 20, PageID #193–94), Mr. Pough had sufficient time within the limitations period

to exhaust the administrative remedies for his claims against Investigator Weishar

and failed timely to file suit.

Upon review of the authorities on which Mr. Pough relies (ECF No. 25,

PageID #216–17), the Court remains unpersuaded that equitable tolling applies.

Courts within the Sixth Circuit apply equitable tolling “sparingly.” Robertson v.

Simpson, 624 F.3d 781, 783 (6th Cir. 2010). Plaintiff bears the burden of

demonstrating that “(1) he diligently pursued his rights and (2) some extraordinary

circumstance prevented him from filing on time.” Borns v. Chrisman, 167 F.4th 335,

346 (6th Cir. 2026) (citations omitted).

In an attempt to demonstrate that equitable tolling applies, Plaintiff relies on

Brent v. Wayne County Department of Human Services, 901 F.3d 656, 679 (6th Cir.

2018), for the proposition that, where a plaintiff actively pursues his judicial remedies

within the limitations period by filing a defective pleading, a district court does not

abuse its discretion by allowing equitable tolling. In Brent, the plaintiff attempted to

initiate a claim under Michigan law by joining a party on the last day of the

limitations period. The Sixth Circuit relied on Irwin v. Department of Veterans

Affairs, 498 U.S. 89, 96 (1990), saying that the Supreme Court allows “equitable

tolling in situations where the claimant has actively pursued his judicial remedies by

filing a defective pleading during the statutory period.” Brent, 901 F.3d at 679. That

observation by the Supreme Court in Irwin makes sense as applied to a defective

filing on the last day of the statutory period, as in Brent. But in Irwin, the Supreme

Court recognized that federal courts have “generally been much less forgiving in

receiving late filings where the claimant failed to exercise due diligence in preserving

his legal rights.” 498 U.S. at 96 (citing Baldwin Cnty. Welcome Ctr. v. Brown, 466

U.S. 147, 151 (1984).

Such is the case here. The alleged facts, even construed in Plaintiff’s favor,

show that Mr. Pough failed to exercise due diligence much more than he attempted a

good-faith effort to preserve his rights within the limitations period. And he has not

demonstrated an extraordinary circumstance that prevented him from filing within

the limitations period. After all, Plaintiff knew in July 2022 about the conduct of

Investigator Weishar about which he now complains. And Plaintiff discovered

Investigator Weishar’s alleged retaliation in August 2023. But he did not take any

administrative action until almost a year later in July 2023 and waited until

September 2024 to file even a defective complaint.

If Plaintiff diligently pursued his legal rights, he would not have waited to

pursue his administrative remedies, which would have allowed him to file his

complaint—even a defective one—within the limitations period. Accordingly, the

record reflects that Plaintiff did not act with reasonable diligence to pursue his rights,

and he provides no justification for the delay. As the Court previously stated,

“[a]lthough Plaintiff had the necessary information providing the basis for his claims

against Investigator Weishar within the limitations period, and months to spare

before its expiration, he failed to pursue his claims with reasonable diligence.” (ECF

No. 20, PageID #194.) Indeed, the Sixth Circuit has denied equitable tolling in cases

where petitioners sat idle for far less time than did Mr. Pough. See Borns, 167 F.4th

at 346 (collecting cases denying equitable tolling based on delays of five and seven

months).

To the extent that Plaintiff relies on Brent to argue that the Court abused its

discretion by not allowing equitable tolling (ECF No. 20, PageID #217), just because

the Sixth Circuit ruled under the facts of that case (which are far different than those

here) that the district court did not abuse its discretion by allowing equitable tolling

does not necessarily mean that a decision not to apply equitable tolling would amount

to an abuse of discretion. As the Court previously noted, equitable tolling might not

apply in all cases, particularly cases like this one alleging retaliation. (ECF No. 20,

PageID #193 (citing Reguli v. Russ, 109 F.4th 874, 885 (6th Cir. 2026) (White, J.,

concurring).) Indeed, as the Supreme Court recognizes, the federal courts apply

equitable tolling sparingly. Irwin, 498 U.S. at 96. Nothing in the record or Plaintiff’s

motion establishes that he diligently pursued his rights or shows extraordinary

circumstances that prevented him from filing within the limitations period.

CONCLUSION

For the foregoing reasons, the Court DENIES Plaintiff’s motion under

Rule 59. (ECF No. 25.) Mr. Pough also seeks to appeal in forma pauperis. (ECF

No. 24.) Under 28 U.S.C. § 1915(b), the Court must require Mr. Pough to pay the full

$605 filing fee, with “an initial partial filing fee of 20 percent of the greater of” (1) the

average monthly deposits to the prisoner’s account; or (2) the average monthly

balance in the prisoner’s account for the 6-month period immediately preceding the

filing of the notice of appeal. Mr. Pough knows that he must provide this information

because he previously did. (ECF No. 2-1.) But the statute requires updated

information. Because Mr. Pough did not provide the information from which the

Court can determine the amount of the initial partial payment due, the Court

ORDERS Plaintiff to provide that information forthwith and no later than 30 days

from the date of this Order.

SO ORDERED.

Dated: March 18, 2026

J. Philip Calabrese

United States District Judge

Northern District of Ohio