Custard v. Allred et al

Filing 25

ORDER denying 23 Motion to Reconsider; denying as moot 20 APPEAL OF MAGISTRATE JUDGE DECISION to District Court; by Judge Lewis T. Babcock on 12/20/11.(lsw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-02839-LTB
BOB ALLEN CUSTARD,
Plaintiff,
v.
D. ALLRED, et al.,
Defendants.

ORDER DENYING MOTION TO RECONSIDER

This matter before the Court is the “Motion for Withdrawal of ‘Court Clerk’s’
Judgment” filed on December 16, 2011. Mr. Custard seeks the removal of the Clerk’s
Judgment entered on December 8, 2011. The Court must construe the Motion liberally
because Mr. Custard 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 construe the Motion as filed pursuant to Fed. R. Civ. P. 59(e) and
will deny the Motion.
The Court dismissed the action because Mr. Custard failed to comply with the
Order of November 7, 2011, directing him to file an amended complaint that conforms to
the pleading requirements stated in Fed. R. Civ. P. 8.
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). Final
decisions are those that end the litigation on the merits and leave nothing for the district
court to do except execute the judgment. Van Cauwenberghe v. Biard, 486 U.S. 517,
521-22 (1988); In re Durability, Inc., 893 F.2d 264, 265 (10th Cir. 1990). The Motion
was filed on December 16, 2011, within twenty-eight days of the final judgment in this
action. See Fed. R. Civ. P. 6(a). The Court, therefore, will construe the Motion as filed
pursuant to Rule 59(e). 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 a
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 to Reconsider, the Order of Dismissal, and the
entire file, the Court concludes that Mr. Custard fails to demonstrate some reason why
the Court should alter or amend the December 8 Order of Dismissal and Judgment in
this action. The Judgment was properly entered by the Clerk of the Court. Nothing Mr.
Custard asserts gives cause for reinstating this case. Accordingly, it is
ORDERED that Mr. Custard’s Motion for Withdrawal of Court Clerk’ s Judgment
(Doc. No. 23) is construed as filed pursuant to Fed. R. Civ. P. 59(e) and is

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DENIED. It is
FURTHER ORDERED that Mr. Custard’s Appeal to a District Judge From a
Magistrate’s Order (Doc. No. 20) is DENIED as moot.
DATED at Denver, Colorado, this

20th

day of

December

, 2011.

BY THE COURT:

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

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