Robinette et al v. Schirard et al

Filing 226

ORDER by Magistrate Judge Kristen L. Mix on 4/30/14 Denying as moot 212 Motion to Show Cause and Denying 220 Motion to Reconsider. (lgale)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-02172-CMA-KLM
BONNER ROBINETTE, and
SHIRLEY ROBINETTE,
Plaintiffs,
v.
BOBBIE FENDER, in his individual and professional capacities,
AMBER FENDER, in her individual and professional capacities,
STEVE SCHMIDT, in his individual and professional capacities,
SEAN SMITH, in his individual and professional capacities, and
CHARLES HAMBY, in his individual and professional capacities,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiffs’ Motion to Show Cause Why
Defendant County Attorney Paul Kosnik Be Not Dismissed From This Case [#212]
(the “Motion to Show Cause”) and on Plaintiffs’ Motion Requesting the Courts to Focus
on New Evidence of the Continuation of Pattern or Practice of (1) Violation of 42
U.S.C. § 1983 Due Process and Equal Protection Clauses, 42 U.S.C. § 1988(5) (NIED),
(6) (IIED) & (18 U.S.C. § 1519) Tampering With Evidence on January 27, 2014 [#220]
(the “Motion to Reconsider”).
Plaintiffs proceed in this matter as pro se litigants.1 In the Motion to Reconsider

1

The Court is mindful that it must construe the filings of a pro se litigant liberally. See
Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.

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[#220], they appear to ask the undersigned to reconsider the Recommendation [#209] to
dismiss certain Defendants and claims from this action. A motion for reconsideration “is
an extreme remedy to be granted in rare circumstances.” Brumark Corp. v. Samson Res.
Corp., 57 F.3d 941, 944 (10th Cir. 1995). It is well-established in the Tenth Circuit that
grounds for a motion to reconsider are limited to the following: “(1) an intervening change
in the controlling law; (2) new evidence previously unavailable; and (3) the need to correct
clear error or prevent manifest injustice.” Servants of Paraclete v. Does, 204 F.3d 1005,
1012 (10th Cir. 2000) (citing Brumark, 57 F.3d at 948). Therefore, a motion to reconsider
is “appropriate [only] where the court has misapprehended the facts, a party's position, or
the controlling law.” Id.
First, Plaintiffs present no argument in the Motion to Reconsider [#220] regarding
“an intervening change in the controlling law.” Brumark Corp., 57 F.3d at 944. Second,
Plaintiffs provide a lengthy discourse of the actions of current and former Defendants in this
matter in order to try to demonstrate a continuing pattern or practice of constitutional
violations. However, most of this information was available to Plaintiffs much earlier in this
lawsuit, and even the most recently cited events occurred in late January and thus cou8ld
have been mentioned by Plaintiffs in their Objection [#214] filed on February 27, 2014.
Plaintiffs have provided no reason why they could not have timely complied with procedural
rules and the deadlines set in this case. Thus, Plaintiffs have not provided any relevant

1991). However, the Court is not a pro se litigant's advocate, nor shall the Court “supply additional
factual allegations to round out [a pro se litigant's] complaint or construct a legal theory on [his or
her] behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall, 935
F.2d at 1110). In addition, Plaintiffs, as pro se litigants, must follow the same procedural rules that
govern other litigants. Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).

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“new” and “previously unavailable” evidence. Servants of Paraclete, 204 F.3d at 1012.
Third, Plaintiffs have shown neither that the Court has made a “clear error” nor that the
Court's Recommendation must be modified to “prevent manifest injustice.” Brumark Corp.,
57 F.3d at 944. Accordingly,
IT IS HEREBY ORDERED that the Motion to Reconsider [#220] is DENIED.
IT IS FURTHER ORDERED that the Motion to Show Cause [#212] is DENIED as
moot. After review of all relevant filings in this matter after Plaintiffs filed this Motion to
Show Cause, the District Judge agreed with the undersigned’s Recommendation [#209]
that Paul Kosnik should be dismissed from this lawsuit. Mr. Kosnik is therefore no longer
a party.

Dated: April 30, 2014

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