Carbajal v. Warner et al

Filing 467

ORDER Denying Motion for Reconsideration. Plaintiff's Contemporaneous Objection To the Court's Order Adopting Recommendation of Magistrate Judge's Denial of Injunction [Doc. # 414 ] [# 463 ] read either as a motionunder FED. R. CIV. P. 60(b) or as a motion to reconsider, is DENIED. By Judge Robert E. Blackburn on 4/2/2013. (klyon, )

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.
MYRL SERRA, in his individual capacity, et al.,
Defendants.

ORDER DENYING MOTION FOR RECONSIDERATION
Blackburn, J.
This matter is before me on the Plaintiff’s Contemporaneous Objection To the
Court’s Order Adopting Recommendation of Magistrate Judge’s Denial of
Injunction [Doc. #414] [#463]1 filed March 22, 2013. Defendants Jeffrey Watts and
Edward Gruninger filed a response [#466]. I deny the motion.2
On November 13, 2012, the magistrate judge filed a recommendation [#414]
addressing the plaintiff’s Corrected Petition for Federal Injunction Pursuant to FED.
R. CIV. P. 65 [#375]. The magistrate judge recommended that the petition be denied.
1

“[#463]” 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.
2

Because plaintiff is proceeding pro se, I continue to construe his pleadings and other filings
more liberally and held them to a less stringent standard than formal pleadings drafted by lawyers. See
Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Andrews v.
Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)
(citing Haines v. Kerner, 404 U.S. 519,520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972)). However, I
have not acted as an advocate for the plaintiff.

On March 6, 2013, I entered an order [#446] adopting the recommendation. In his
present objection [#463], the plaintiff objects to my order [#446].
Essentially, the plaintiff asks that I reverse field, reject the recommendation, and
grant the relief requested by the plaintiff in his motion for an injunction. I read the
plaintiff’s filing as a motion under FED. R. CIV. P. 60(b) for relief from the court’s order
[#446]. Rule 60(b) relief requires a showing of exceptional circumstances warranting
relief from a judgment or order. Van Skiver v. United States, 952 F.2d 1241, 1243
(10th Cir. 1991). A litigant shows exceptional circumstances by satisfying one or more of
the grounds for relief enumerated in Rule 60(b). Id. at 1243-44. In his motion, the
plaintiff does not satisfy any of the grounds for relief enumerated in Rule 60(b).
Alternatively, the plaintiff’s motion can be read as a motion to reconsider. The
bases for granting reconsideration 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). In his motion, the plaintiff does not establish any of these bases for
reconsideration of the court’s order [#446].

2

THEREFORE, IT IS ORDERED that the Plaintiff’s Contemporaneous
Objection To the Court’s Order Adopting Recommendation of Magistrate Judge’s
Denial of Injunction [Doc. #414] [#463] filed March 22, 2013, read either as a motion
under FED. R. CIV. P. 60(b) or as a motion to reconsider, is DENIED.
Dated April 2, 2013, at Denver, Colorado.
BY THE COURT:

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