Carbajal et al v. City and County of Denver et al

Filing 16

ORDER granting 13 Motion for Reconsideration. Order 11 of Dismissal and the Judgment 12 are vacated. The Clerk of the Court is directed to reinstate and return this action to the Pro Se Docket. Plaintiffs, within 30 days shall file an Amend ed Complaint. Plaintiffs shall obtain the Court-approved Prisoner Complaint form. The Clerk of the Court is directed to place on theDocket in this case a copy of Document No. 247 from Case No. 10-cv-02862-REB-KLM. Once Document No. 247, a Motion for Extension of Time, is placed on the Docket in this case the Motion shall be denied as moot, by Judge Lewis T. Babcock on 1/17/12.(lsw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-02826-LTB
DEAN CARBAJAL, and
VICTORIA CARBAJAL
Plaintiffs,
v.
CITY AND COUNTY OF DENVER, A Political Subdivision of the State of Colorado,
MITCHELL R. MORRISSEY, District Attorney, For the Second Judicial District in His
Individual and Official Capacity,
ANNE M. MANSFIELD, District Court Judge for the Second Judicial District in Her
Individual and Official Capacity,
REBEKAH MELNICK, Deputy District Attorney for the Second Judicial District, In Her
Individual and Official Capacity,
LARA MULLIN, Deputy District Attorney for the Second Judicial District, In Her
Individual and Official Capacity, and
EDWARD D. BROFIN, Magistrate Judge for the Second Judicial District in His
Individual and Official Capacity,
Defendants.

ORDER GRANTING MOTION FOR RECONSIDERATION

This matter arises on the “Motion for Reconsideration and Notice of Error” filed
by Plaintiffs. They seek reconsideration of the Order of Dismissal and the Judgment
entered on January 5, 2012. The Court must construe the Motion liberally because
Plaintiff 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 the Complaint and action without prejudice because
Plaintiffs failed to comply with Magistrate Judge Boyd N. Boland’s November 21, 2011

Order directing them to file an Amended Complaint consistent with Fed. R. Civ. P. 8(a)
and to show cause why Plaintiff Victoria Carbajal’s claims should not be severed from
this action pursuant to Fed. R. Civ. P. 21.
A litigant subject to an adverse judgment 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 Plaintiffs’ Motion for Reconsideration pursuant to Rule 59(e) because it
was filed within twenty-eight days after the Judgment was entered. 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 vacate 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). Upon consideration of the Motion and the entire file, the
Court concludes, based on the following findings, that Plaintiffs have given some reason
why the Court should alter or amend the January 5 Order of Dismissal and Judgment in
this action.

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In the Motion for Reconsideration, Plaintiffs state that they filed a Response
addressing the Court’s directive to show cause and a motion for extension of time to file
an Amended Complaint within the time allowed, but “inadvertently” the filings were
docketed in the wrong case. The Court has reviewed the Court’s docket. A review of
the docket in Case No. 10-cv-02862-REB-KLM shows that on December 22, 2011,
Plaintiffs filed a “Motion for Extension of Time and Response to the Trial Courts Show
Cause Order.” The Motion is captioned, “Civil Action No. 10-cv-02862-REB-KLM.”
Plaintiffs are responsible for the management of their cases and for identifying each
filing submitted to the Court with the correct case number. Nonetheless, now that
Plaintiffs have alerted the Court about the incorrect caption on the December 22 Motion,
it is clear that the Motion should be filed in this case. The Court, therefore, will vacate
the Order of Dismissal and Judgment in this case. Accordingly, it is
ORDERED that Plaintiffs’ Motion for Reconsideration (Doc. No. 13) is
granted. It is
FURTHER ORDERED that the Order of Dismissal and the Judgment, both filed
on January 5, 2012, 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 Plaintiffs, within thirty days of the date of this Order,
shall file an Amended Complaint as they were instructed to do in the November 21,
2011 Order. It is
FURTHER ORDERED that Plaintiffs shall obtain the Court-approved Prisoner
Complaint form (Plaintiff Dean Carbajal may obtain the form with the assistance of his

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case manager or the facility’s legal assistant), along with the applicable instructions, at
www.cod.uscourts.gov for use in filing the Complaint. It is
FURTHER ORDERED that if Plaintiffs fail to comply with this Order within the
time allowed the Complaint and action will be dismissed without further notice. It is
FURTHER ORDERED that the Clerk of the Court is directed to place on the
Docket in this case a copy of Document No. 247 from Case No. 10-cv-02862-REB-KLM.
It is
FURTHER ORDERED that once Document No. 247, a Motion for Extension of
Time, is placed on the Docket in this case the Motion shall be denied as moot. It is
FURTHER ORDERED that the Court will defer consideration of the Response
portion of Document No. 247 until Plaintiffs have filed an Amended Complaint.
DATED at Denver, Colorado, this

17th

day of

January

, 2012.

BY THE COURT:

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

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