Stine v. U.S. Federal Bureau of Prisons et al

Filing 13

ORDER denying 10 Motion to Reconsider, by Judge Lewis T. Babcock on 12/8/11.(lyg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-02665-LTB
MIKEAL GLENN STINE,
Plaintiff,
v.
U.S. FEDERAL BUREAU OF PRISONS,
DR. CHRISTOPHER WILSON, ADX,
DR. DAVID ALLRED, Clinical Director,
BLAKE DAVIS, Warden, ADX,
MR. MUNSON, Associate Warden, ADX,
A. OSAGIE, Physician Assistant, ADX,
MR. SMITH, Assistant, Administrative Health Service, and
JOHN DOE, Unknown Defendants,
Defendants.

ORDER DENYING MOTION TO RECONSIDER

The matter before the Court is the “Verified Motion to Reconsider the Courts [sic]
Order of Dismissal Under Rule 59(e) Federal Rules of Civil Procedure ‘With Good
Cause,’ with Expedited Consideration” that Plaintiff, Mikeal Glenn Stine, a pro se
prisoner litigant, filed on November 7, 2011. Mr. Stine is in the custody of the United
States Bureau of Prisons and currently is incarcerated at ADX in Florence, Colorado.
Mr. Stine seeks reconsideration of the Order of Dismissal and the Judgment entered on
October 28, 2011. The Court must construe the Motion liberally because Mr. Stine 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 deny the Motion.

A litigant subject to an adverse judgment, and who seeks reconsideration by the
district court of that adverse judgment, may “file either a motion to alter or amend the
judgment pursuant to Fed. R. Civ. P. 59(e) or a motion seeking relief from the judgment
pursuant to Fed. R. Civ. P. 60(b).” Van Skiver v. United States, 952 F.2d 1241, 1243
(10th Cir. 1991). A motion to alter or amend the judgment must be filed within
twenty-eight days after the judgment is entered. See Fed. R. Civ. P. 59(e). The Court
will consider Mr. Stine’s Motion to Reconsider pursuant to Rule 59(e) because it was
filed within twenty-eight days after the dismissal and judgment were entered in this
action on October 28, 2011. See Van Skiver, 952 F.2d at 1243 (stating that a motion to
reconsider should be construed as filed pursuant to Rule 59(e) when it is filed within the
ten-day limit (limit effective prior to December 1, 2009) set forth under Rule 59(e)).
The three major grounds that justify reconsideration are: (1) an intervening
change in 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). A motion to reconsider is appropriate where the
court has misapprehended the facts, a party’s position, or the controlling law. Id. (citing
Van Skiver, 952 F.2d at 1243).
In the Motion, Mr. Stine concedes he has not complied with the sanctions he is
subject to under Stine v. Lappin, et al., No. 07-cv-01839-WYD-KLM, Doc. No. 344 (D.
Colo. Sept. 1, 2009). He requests a waiver of the sanctions because he does not have
the funds to obtain the necessary court documents that contain the information he is
required to submit to the Court when seeking permission to file a new case. The Court
is not responsible for Mr. Stine’s inability to comply with the restrictions set forth in Case

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No. 07-cv-01839 and will not waive the requirements of the sanctions. Mr. Stine also
was informed in Stine v. Fed. Bureau of Prisons, No. 11-cv-00109-WJM-CBS, Doc. No.
9 (D. Colo. filed Jan. 14, 2001), that the Court would not make special efforts in the
future to address his claims of imminent danger of serious physical harm if he did not
comply with the terms of the sanction stated in Case No. 07-cv-01839-WYD.
Nonetheless, Mr. Stine has alternatives to address his medical issue. He
concedes that he is allowed two medications per month from the pharmacy. He does
not claim that he is unable to replace one of the medications with Omeprazole (a proton
pump inhibitor used for reflux disease) or that without either medication he currently
receives he would be in imminent danger of serious physical injury. Moreover, Mr. Stine
does not describe with any specificity how he used the Mylanta II/Maalox Plus on a
regular basis during September and October 2011 but still did not receive relief from
either the Mylanta or the Maalox. He only states that the Mylanta II/Maalox Plus was
completely ineffective. Mr. Stine, therefore, fails to assert specific fact allegations that
the provision of the Mylanta 11/Maalox Plus by prison staff in place of Omeprazole is a
“pattern of misconduct evidencing the likelihood of imminent serious physical injury.”
Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003).
In further support of Mr. Stine’s failure to state imminent serious physical injury
based on a pattern of misconduct by prison staff, the Court notes, as it did in the Order
of Dismissal, that Mr. Stine attempts to blame the BOP for incidents that are no more
than his refusal to comply with prison policies and procedures and to take responsibility
for his own personal needs. The Court further notes that Mr. Stine has a history of filing

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false pleadings and inundating the Court with meritless and frivolous filings. See Case
No. 07-cv-01839-WYD-KLM, Doc. No. 344 at 23.
The Court, therefore, will deny Mr. Stine’s Motion to Reconsider because he fails
to demonstrate that the Court misapprehended the facts, his position, or the controlling
law and that reinstatement of this action is deserving. Accordingly, it is
ORDERED that Mr. Stine’s Motion to Reconsider (Doc. No. 10) filed on
November 7, 2011, is denied.
DATED at Denver, Colorado, this

8th

day of

December

, 2011.

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

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