Carbajal v. Warner et al

Filing 235

ORDER. Plaintiffs Motion for Clarification and/or ContemporaneousObjection and Request for Leave To Appeal An Order Pursuant to FED. R. CIV. P.Rule 54(b) 234 filed 11/1/2011, is GRANTED in part and DENIED in part. By Judge Robert E. Blackburn on 11/10/2011.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 10-cv-02862-REB-KLM
DEAN CARBAJAL,
Plaintiffs,
v.
SEVENTH JUDICIAL DISTRICT, political subdivision of the State of Colorado, et al.,
Defendants.

ORDER CONCERNING PLAINTIFF’S MOTION FOR CLARIFICATION
Blackburn, J.
This matter is before me on the plaintiff’s1 Motion for Clarification and/or
Contemporaneous Objection and Request for Leave To Appeal An Order
Pursuant to FED. R. CIV. P. Rule 54(b) [#234]2 filed November 1, 2011. I grant the
motion in part and deny it in part.
Generally, the plaintiff’s motion concerns my Order Adopting in Part and
Rejecting in Part Recommendation of United States Magistrate Judge [#229] filed
October 19, 2011. In that order, I granted the motions to dismiss of several of the
defendants and ordered the plaintiff to file an amended complaint under terms specified
in the order. The plaintiff seeks clarification or reconsideration of parts of that order.

1

The plaintiff lists in the caption of his motion a second plaintiff, Victoria Carbajal. All claims
asserted by Victoria Carbajal were dismissed in my order [#229], and Victoria Carbajal is not a party in this
case.
2

“[#234]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

The bases for granting reconsideration of an order are extremely limited:
Grounds warranting a motion to reconsider include (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. Thus, a motion for
reconsideration is appropriate where the court has
misapprehended the facts, a party’s position, or the
controlling law. It is not appropriate to revisit issues already
addressed or advance arguments that could have been
raised in prior briefing.
Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citations
omitted).
The plaintiff argues that the claims asserted against the Delta County Board of
County Commissioners, The City and County of Denver, and a defendant named as
unknown Delta Sheriff, in his individual and official capacities, should not have been
dismissed with prejudice. Having reviewed the record, including the recommendation
[#198] and the objection [#210] filed by unknown Delta Sheriff, I agree in part. The
magistrate judge recommended that the claims against these three defendants be
dismissed without prejudice. Recommendation [#198], p. 43. With one exception,
discussed below, the plaintiff’s claim or claims against these defendants are not, on the
current record, subject to dismissal with prejudice. However, the claims asserted
against the defendant named as unknown Delta Sheriff in his official capacity are
subject to dismissal with prejudice.
If the plaintiff files an amended complaint, he may assert a claim or claims
against unknown Delta Sheriff, but only in his individual capacity. The plaintiff is warned
that claims asserted against parties named as unknown, John Doe, or other generic
references are subject to dismissal if the true identity of the party is not specified within
a reasonable time. It is the plaintiff’s burden to identify each party named in his
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complaint.
In my recent order [#229], I granted the plaintiff permission to file a third
amended complaint on or before November 15, 2011. In his present motion, the plaintiff
raises several issues about the filing of an amended complaint. In my order [#229], I
ordered that any third amended complaint not exceed 25 pages in length. The plaintiff
argues that 25 pages is not sufficient to permit him to state all of the claims he has
against all of the defendants he wishes to name. On this basis, he seeks an expansion
of the page limitation. In the alternative, the plaintiff seeks to divide his claims into two
groups, and to file separate complaints stating his claims in each group. In effect, this
would permit the plaintiff to file a 50 page complaint. There is no valid basis for
expanding the page limitation for the plaintiff’s third amended complaint. Twenty-five
pages is sufficient for the plaintiff to provide a short and plain statement of his claims, as
required by FED. R. CIV. P. 8.
I ordered the plaintiff to file any third amended complaint on the court’s standard
prisoner complaint form for actions under 42 U.S.C. § 1983. In his present motion, the
plaintiff notes that the first page of the form complaint provides space to name eight
defendants. The plaintiff wishes to name 22 defendants. Thus, the plaintiff may create
his own caption page listing the 22 defendants he wishes to name.
One defendant named in the plaintiff’s previous complaint, Patricia Kramer, is
deceased. The plaintiff now seeks permission to name Patricia Kramer’s estate as a
defendant. Nothing in the court’s previous order [#229] precludes the plaintiff from
naming an estate representative as a defendant.
The plaintiff seeks also an extension of time to file his third amended complaint
so he may have the issues raised in his present motion resolved before writing his third
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amended complaint. I grant the plaintiff an additional 21 days in which to file his third
amended complaint.
Finally, the plaintiff seeks a certification of the my recent order [#229] as a final
judgment under FED. R. CIV. P. 54(b). Under FED. R. CIV. P. 54(b), I may direct entry of
final judgment as to one or more, but fewer than all, claims in a case if I determine that
there is “ no just reason for delay” in entering such a judgment. There is no valid basis
for certification of my recent order [#229] as a final judgment. The plaintiff’s motion for a
Rule 54(b) certification is denied.
THEREFORE, IT IS ORDERED as follows:
1. That the plaintiff’s Motion for Clarification and/or Contemporaneous
Objection and Request for Leave To Appeal An Order Pursuant to FED. R. CIV. P.
Rule 54(b) [#234] filed November 1, 2011, is GRANTED in part;
2. That my Order Adopting in Part and Rejecting in Part Recommendation
of United States Magistrate Judge [#229] filed October 19, 2011, is AMENDED to
provide that the claims against defendants, the Delta County Board of County
Commissioners, The City and County of Denver, and unknown Delta Sheriff, in his
individual capacity, are DISMISSED without prejudice;
3. That otherwise, my Order Adopting in Part and Rejecting in Part
Recommendation of United States Magistrate Judge [#229] filed October 19, 2011,
SHALL REMAIN in full force and effect;
4. That the plaintiff’s request for an expansion of the 25 page limitation on his
third amended complaint is DENIED;
5. That in filing his third amended complaint, the plaintiff SHALL FILE a
complaint on the court’s standard prisoner complaint form for actions under 42 U.S.C. §
4

1983, but the plaintiff MAY PREPARE AND FILE a first page to the complaint without
using the court’s form, so long as all information required on page one of the court’s
form is provided in the third amended complaint;
6. That if the plaintiff chooses to file a third amended complaint, that complaint
SHALL BE FILED on or before December 6, 2011; and
7. That otherwise, the plaintiff’s Motion for Clarification and/or
Contemporaneous Objection and Request for Leave To Appeal An Order
Pursuant to FED. R. CIV. P. Rule 54(b) [#234] filed November 1, 2011, is DENIED.
Dated November 10, 2011, at Denver, Colorado.
BY THE COURT:

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