Simmons v. Clements et al.

Filing 22

ORDER denying Motion for Reconsideration. ORDERED that the Motion for Reconsideration 21 is DENIED. FURTHER ORDERED that the Motion to Amend Prisoner Complaint 16 is denied as unnecessary, by Judge Lewis T. Babcock on 11/8/11.(lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-01613-BNB
LEO SIMMONS,
Plaintiff,
v.
TOM CLEMENTS, Executive Director,
KEVIN MILYARD, Warden,
TIMOTHY USRY, Major,
SCOTT, Captain,
LT. SHIFT COMMANDER,
BANUELOS, C/O in Charge Unit 24, and
MEDICAL COORDINATOR,
Defendants.

ORDER DENYING MOTION FOR RECONSIDERATION

Plaintiff, Leo Simmons, is a prisoner in the custody of the Colorado Department
of Corrections. He currently is incarcerated at the correctional facility in Sterling,
Colorado. Mr. Simmons filed a “Motion for Reconsideration and Review of Minute
Order, Recusation Administrative Review for Improper and Inconsistent Action” on
November 2, 2011. In the Motion, Mr. Simmons appears to request that the Court
vacate the Order Denying Leave to Proceed In Forma Pauperis dated October 19,
2011. The Court must construe the Motion liberally because Mr. Simmons is a pro se
litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991).

The three major grounds that justify reconsideration are: (1) an intervening
change in the 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). Upon consideration of the Motion for
Reconsideration and the entire file, the Court concludes that the Motion should be
denied.
Mr. Simmons, acting pro se, initiated this action by filing a “Commencement of
Action, Notice of Intent” on June 20, 2011. Magistrate Judge Boyd N. Boland instructed
Mr. Simmons to file his claims on a Court-approved form used in filing prisoner
complaints and either to pay the $350.00 filing fee in full or to file a Motion and Affidavit
for Leave to Proceed Pursuant to 28 U.S.C. § 1915. Finally, by September 7, 2011, Mr.
Simmons filed his claims on a proper Court-approved form and submitted a § 1915
motion requesting leave to proceed in forma pauperis.
Magistrate Judge Craig B. Shaffer reviewed the § 1915 Motion and the
Complaint and entered an order directing Mr. Simmons to amend his Complaint and to
show cause why he should not be denied leave to proceed pursuant to 28 U.S.C.
§ 1915(g) because (1) he has on three or more prior occasions, while incarcerated or
detained in any facility, brought an action in a court of the United States that was
dismissed on the grounds that it was frivolous or failed to state a claim; and (2) he fails
to assert that he is under imminent danger of serous physical injury. Specifically,
Magistrate Judge Shaffer instructed Mr. Simmons to amend his Complaint and assert
only claims of imminent danger of serious physical injury. Mr. Simmons filed an
Amended Complaint on October 14, 2011.
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The Court carefully reviewed the Amended Complaint and found Mr. Simmons’
claims, for the most part, are conclusory and vague. The specific claims he asserted
against three of the named defendants did not state allegations of ongoing serious
physical injury. The Court also has carefully reviewed Mr. Simmons’ Motion for
Reconsideration. In a conclusory fashion, Mr. Simmons claims that (1) he has served
his sentence in full but is denied release from incarceration; (2) his current classification
is unauthorized; (3) the medication he receives is different than what is prescribed; and
(4) prison staff has threatened him so he just does what they tell him to do. Nothing he
asserts in the Motion sets forth specific allegations of ongoing serious physical injury.
Mr. Simmons fails to assert any of the major grounds that would justify
reconsideration in his case. The Motion for Reconsideration, therefore, will be denied.
Mr. Simmons must pay the full $350.00 filing fee pursuant to 28 U.S.C. § 1914(a) if he
wishes to pursue his claims in this action. The Court will provide Mr. Simmons
additional time to submit the $350.00 filing fee, but he is warned that his failure to pay
the fee within the time provided will result in the dismissal of this action without further
notice. Accordingly, it is
ORDERED that the Motion for Reconsideration, Doc. No. 21, is DENIED. It is
FURTHER ORDERED that Mr. Simmons shall have twenty-one days from the
date of this Order to pay the entire $350.00 filing fee if he wishes to pursue his claims
in this action. It is
FURTHER ORDERED that if Mr. Simmons fails to pay the entire $350.00 filing
fee within the time allowed, the Complaint and the action will be dismissed without

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further notice. It is
FURTHER ORDERED that the Motion to Amend Prisoner Complaint, Doc. No.
16, is denied as unnecessary. It is
FURTHER ORDERED that the only proper filing at this time is the payment of the
$350.00 filing fee.
DATED at Denver, Colorado, this

8th

day of

November

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Judge
United States District Court

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, 2011.