Wallin v. Everett et al

Filing 14

ORDER granting 13 Motion for Reconsideration. FURTHER ORDERED that the Order of Dismissal and the Judgment, entered on 10/24/11 are vacated. FURTHER ORDERED that the Clerk of the Court is directed to reinstate and return this action to the Pro Se Docket. FURTHER ORDERED that Clerk of the Court shall enter Pages 4- 25 of Document No. 11 as a separate docket entry and note the Application as filed on 11/18/11. FURTHER ORDERED that the Prisoners Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action 2 is granted, by Judge Lewis T. Babcock on 1/10/12.(lyg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02009-LTB
OLOYEA D. WALLING,
Applicant,
v.
VINCE EVERETT, Warden, KCCC, and
COLORADO ATTORNEY GENERAL OFFICE,
Respondents.

ORDER GRANTING MOTION FOR RECONSIDERATION

This matter arises on the “Motoin [sic] for Postjudgment Fed. R. Civ. P. 60” filed
by Applicant, a pro se prisoner litigant, on January 6, 2012. Applicant currently is
detained at the El Paso County Criminal Justice Center in Colorado Springs, Colorado.
Applicant seeks reconsideration of the Order of Dismissal and the Judgment entered on
October 24, 2011. The Court must construe the Motion liberally because Applicant 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). For the reasons stated below, the
Court will grant the Motion.
The Court dismissed this action without prejudice because Applicant failed to
comply with Magistrate Judge Boyd N. Boland’s Order of August 9, 2011, directing him
to submit his claims on a Court-approved form used in filing habeas actions. On
November 8, 2011, Applicant filed a Motion for Reconsideration pursuant to Fed. R. Civ.

P. 59(e) asking that the dismissal be vacated. Applicant asserted that he had filed his
claims on a Court-approved form within the time allowed. The Court denied the Rule
59(e) Motion because Applicant failed to meet his burden of proof that he made timely
use of the prison’s legal mail system in submitting his Application to the Court.
Applicant now has submitted documentation that indicates legal correspondence
to this Court was given to prison staff for mailing on September 23, 2011. Although the
Court has reviewed all cases that Applicant has filed in this Court and in the Tenth
Circuit and finds nothing was submitted in this case or inadvertently in any of Applicant’s
other cases, based on the documentation Applicant has submitted, the Court finds
sufficient reason for vacating the dismissal. Accordingly, it is
ORDERED that Applicant’s Motion (Doc. No. 13) is granted. It is
FURTHER ORDERED that the Order of Dismissal and the Judgment, entered on
October 24, 2011, are vacated. It is
FURTHER ORDERED that the Clerk of the Court is directed to reinstate and
return this action to the Pro Se Docket. It is
FURTHER ORDERED that Clerk of the Court shall enter Pages 4-25 of
Document No. 11, which is the Court-approved Application form that Applicant attached
to his first Motion for Reconsideration, as a separate docket entry and note the
Application as filed on November 18, 2011. It is
FURTHER ORDERED that the Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action (Doc. No. 2) is
granted. It is

2

FURTHER ORDERED that process shall not issue until further order of the
Court.
DATED at Denver, Colorado, this

10th

day of

January

BY THE COURT:

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

3

, 2012.