Ford v. Lovinger et al

Filing 23

ORDER denying 22 Motion to Reconsider, by Judge Lewis T. Babcock on 7/20/12.(lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 10-cv-00158-ZLW

CARL B. FORD, No. 013957,
Plaintiff,
v.
MR. LOVINGER, Under Sheriff, Denver Sheriff Department,
ROBERT STAUCH, Denver Deputy Sheriff, and
JAMES HERRERA, Deputy [sic] Deputy Sheriff,
All Defendant's [sic] in There [sic] Official and Ind[i[vidual Capacitys [sic],
Defendants.

ORDER DENYING MOTION TO RECONSIDER

Plaintiff, Carl B. Ford, filed pro se on July 17, 2012, a “Motion Requesting for
Reinstatement of Civil Rights Action”, requesting that the Court reconsider and vacate
the Order of Dismissal and the Judgment filed in this action on May 28, 2010. The
Court must construe the motion liberally because Mr. Ford is proceeding pro se. See
Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). The motion will be construed as a motion to reconsider, and will be
denied for the reasons set forth below.
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 reconsider filed more than twenty-eight days after the final
judgment in an action should be considered pursuant to Rule 60(b). See id. at 1243.
Mr. Ford’s motion to reconsider, which was filed more than twenty-eight days after the
Judgment was entered in this action, will be considered pursuant to Fed. R. Civ. P.
60(b). Relief under Rule 60(b) is appropriate only in extraordinary circumstances. See
Massengale v. Oklahoma Bd. of Examiners in Optometry, 30 F.3d 1325, 1330 (10th Cir.
1994).
By order dated April 20, 2010, Magistrate Judge Boyd N. Boland granted Mr.
Ford leave to proceed pursuant to 28 U.S.C. § 1915. The April 20 Order also directed
Mr. Ford to pay an initial partial filing fee of $52.00, or show cause why he could not pay
by filing a certified copy of his inmate account statement. On May 3, 2010, Mr. Ford
filed a certified inmate account statement and a letter to the Court. In the letter, Mr.
Ford stated that he had “put in” for a money order in the amount of $52.00 to be sent to
the Court, but had not received it yet. Mr. Ford did not submit any documents
substantiating his claim that he had requested a money order, and the Court did not
receive $52.00 from Mr. Ford. Further, the inmate account statement submitted to the
Court demonstrated that Mr. Ford had an available balance of $193.00 in his inmate
trust fund account.
Therefore, having never received the initial partial filing fee of $52.00 from Mr.
Ford, on May 28, 2010, the Court dismissed the action for Mr. Ford’s failure to either
pay the initial partial filing fee or show cause why he could not. Judgment also entered
on May 28, 2010.

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In the Motion to Reconsider, Mr. Ford asserts that he was “under the assumption
that the court had taken the case under advisement” and that “he is unaware . . . of
whether the Court had previously granted or denied the plaintiff [leave] to proceed In
Forma Pauperis . . . .” Motion at 1. Plaintiff does not explain his failure to submit the
initial partial filing fee within the time provided, and he does not set forth any
extraordinary circumstances exist that justify a decision to reconsider. Therefore, the
motion to reconsider will be denied.
The instant action was dismissed without prejudice, and Mr. Ford may, if he
desires, seek to file a new action. Accordingly, it is
ORDERED that the “Motion Requesting for Reinstatement of Civil Rights Action”
(ECF No. 22) filed on July 17, 2012, is DENIED.
DATED at Denver, Colorado, this

20th

day of

July

, 2012.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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