Allen v. Zavaras et al

Filing 67

ORDER granting in part and denying in part 61 Motion for Reconsideration re 58 Order Granting Motion for Summary Judgment. Accordingly, it is ORDERED that the Motion for Permission to Appeal 61 is DENIED to the extent that it requests the Court to reconsider the Order granting Defendants Motion for Summary Judgment. It is FURTHER ORDERED that Plaintiff shall have thirty days from the date of this Order to file a Notice of Appeal by Judge Christine M. Arguello on 8/11/2011.(erv, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 09-cv-02325-CMA-BNB
EDWARD ALLEN,
Plaintiff,
v.
ARISTEDES ZAVARAS,
SARGENT FRACKMORE,
SARGENT BOATWRIGHT,
OFFICER S. VIGIL, and
LT. STANGER,
Defendants.

ORDER DENYING IN PART AND GRANTING IN PART MOTION

This matter is before the Court on Plaintiff’s “Motion for Permission to Appeal,”
filed on April 21, 2011. (Doc. # 61.) In this Motion, Plaintiff requests that the Court
reconsider an Order issued by the now retired Judge Zita L. Weinshienk that granted
Defendants’ Motion for Summary Judgment.1 (Doc. # 58.) Alternatively, Plaintiff
requests that he be granted permission to appeal. For the following reasons, Plaintiff’s
motion is denied insofar as it requests the Court to reconsider the Order granting
summary judgment. Plaintiff’s motion for permission to appeal is granted.
On March 28, 2011, Judge Weinshienk granted Defendants’ Motion for Summary
Judgment and ordered this action dismissed with prejudice. (Doc. # 58.) Judgement

1

Upon retirement of Judge Weinshienk, the case was reassigned to this Court on
July 15, 2011. (Doc. # 65.)

was entered in favor of Defendants, and against Plaintiff, the next day. (Doc. # 59.) A
litigant subject to an adverse judgment, and who seeks reconsideration by the district
court of that adverse judgment, may “file either a motion to alter or amend the judgment
pursuant to Fed. R. Civ. P. 59(e) or a motion seeking relief from the judgment pursuant
to Fed. R. Civ. P. 60(b).” Van Skiver v. United States, 952 F.2d 1241, 1243 (10th
Cir.1991). A motion to alter or amend the judgment must be filed within twenty-eight
days after the judgment is entered. See Fed. R. Civ. P. 59(e). The Court will consider
Plaintiff’s motion to reconsider pursuant to Rule 59(e) because it was filed within twentyeight days after the Judgment was entered in this action on March 29, 2011.
The three major grounds that justify reconsideration are (1) an intervening
change in controlling law; (2) the availability of new evidence; and (3) the need to
correct clear error or prevent manifest injustice. See Servants of the Paraclete v. Does,
204 F.3d 1005, 1012 (10th Cir. 2000). A motion to reconsider is appropriate where the
court has misapprehended the facts, a party’s position, or the controlling law. Id. (citing
Van Skiver, 952 F.2d at 1243).
In the Motion to Reconsider, Plaintiff rehashes the same arguments that he made
in his response to Defendants’ Motion for Summary Judgment (Doc. # 42) and in his
Objections to Magistrate Judge Boyd N. Boland’s Recommendation. (Doc. # 55.) After
reviewing Plaintiff’s instant Motion and the Order granting summary judgment, the Court
finds that Plaintiff has failed to demonstrate an intervening change in controlling law, the
availability of new evidence, or the need to correct clear error or prevent manifest
injustice. Therefore, Plaintiff’s Motion is denied insofar as it requests the Court to
reconsider the Order granting summary judgment to Defendants.
2

Plaintiff also moves the Court for permission to appeal. Because Plaintiff filed his
Motion within twenty-eight days of the judgment, it tolls the time to file a Notice of
Appeal. Fed. R. App. P. 4(a)(4)(A)(iv). Thus, Plaintiff has thirty days from the date of
this Order to file a Notice of Appeal.2 Fed. R. App. P. 4(a)(1)(A).
Accordingly, it is ORDERED that the Motion for Permission to Appeal (Doc. # 61)
is DENIED to the extent that it requests the Court to reconsider the Order granting
Defendants’ Motion for Summary Judgment.
It is FURTHER ORDERED that Plaintiff shall have thirty days from the date of
this Order to file a Notice of Appeal.

DATED: August 11, 2011
BY THE COURT:

_____________________________
CHRISTINE M. ARGUELLO
United States District Judge

2

To proceed in forma pauperis, Plaintiff must file a motion and affidavit for leave
to proceed on appeal pursuant to 28 U.S.C. § 1915 and Fed. R. App. P. 24.
3