Sarno v. Reilly et al

Filing 64

ORDER denying Motion to Appeal Order Adopting Recommendation of the United States Magistrate Judge. The Motion of Objection (Based on Non-Receipt of Magistrates Recommendation to the Court [# 37 ] filed March 27, 2013, is DENIED. The Motion of Objection To Grant / Deny Order [# 46 ] filed July 8,2013, is DENIED. By Judge Robert E. Blackburn on 2/25/2014.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12-cv-00280-REB-KLM
GEORGE D. SARNO,
Plaintiff,
v.
JOHN REILLY,
DONALD BRIGHTWELL, and
DINO WILLIAMS,
Defendants.

ORDER DENYING MOTION TO APPEAL ORDER ADOPTING
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
This matter is before me on the following: (1) the Motion of Objection (Based
on Non-Receipt of Magistrates Recommendation to the Court [#37]1 filed March 27,
2013; and (2) the Motion of Objection To Grant / Deny Order [#46] filed July 8, 2013.
I deny both motions.
Mr. Sarno is proceeding pro se. I therefore have construed his pleadings more
liberally and held them to a less stringent standard than formal pleadings drafted by
lawyers. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Andrews v. Heaton, 483
F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)
(citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)).

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“[#37]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

In both motions, the plaintiff, George Sarno, contends he did not receive a
recommendation [#27] of the magistrate judge. In the subject recommendation, the
magistrate judge recommended that the motion to dismiss of the defendants be granted
in part and denied in part. After de novo review, I entered an order [#33] on March 20,
2013, adopting the recommendation and granting the motion to dismiss in part and
denying it in part. Considered together, Mr. Sarno’s two motions are, in essence, a
motion for reconsideration of my order [#33] or for relief from that order based on the
contention of Mr. Sarno that he was unable to file objections to the recommendation
because he did not receive the recommendation.
The bases for granting reconsideration are limited:
Grounds warranting a motion to reconsider include (1) an
intervening change in the controlling law, (2) new evidence
previously unavailable, and (3) the need to correct clear
error or prevent manifest injustice. Thus, a motion for
reconsideration is appropriate where the court has
misapprehended the facts, a party’s position, or the
controlling law. It is not appropriate to revisit issues already
addressed or advance arguments that could have been
raised in prior briefing.
Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citations
omitted). FED. R. CIV. P. 60(b) outlines a related standard of review and lists six bases
on which a party may seek relief from an order or final judgment.
The docket belies the assertion of Mr. Sarno that he did not receive the
recommendation. The docket reflects clearly that the recommendation was mailed to
Mr. Sarno at his address of record on the date it was entered. Pursuant to the wellestablished common law “mailbox rule,” “[w]hen mail matter is properly addressed and
deposited in the United States mails, with postage duly prepaid thereon, there is a
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rebuttable presumption of fact that it was received by the addressee in the ordinary
course of mail. . . . Proof of due mailing is prima facie evidence of receipt.” Sorrentino
v. United States, 171 F.Supp.2d 1150, 1152-53 (D. Colo. 2001) (citation and internal
quotation marks omitted; alteration in original). In addition, docket entries enjoy a
presumption of accuracy. Arnold v. Wood, 238 F.3d 992, 995 (8th Cir.) (“In the
absence of reliable evidence to the contrary, we presume the accuracy of the district
court clerk's docket entries.”), cert. denied, 122 S.Ct. 400 (2001). These strong
presumptions are not surmounted by the unsworn denials of receipt made by Mr. Sarno.
Cf. Witt v. Roadway Express, 136 F.3d 1424, 1429-30 (10th Cir.), cert. denied, 119
S.Ct. 188 (1998). Even if they were, they would merely create an issue of credibility for
resolution by the finder of fact. Id. at 1430. Mr. Sarno fails to detail any efforts he made
to determine whether the recommendation was received in the prison mail system and
lost thereafter or otherwise why it may have failed to reach him. I therefore find his
uncircumstantiated claim of non-receipt not to be credible. Moreover, Mr. Sarno offeres
no argument suggesting that he has any meritorious objection sufficient to justify
reexamining my adoption of the recommendation of the magistrate judge.
Having considered the motions of Mr. Sarno, I find that he has not cited or
circumstantiated any valid grounds for reconsideration of my order [#33] or for relief
under Rule 60(b). Thus, the motions must be denied.
THEREFORE, IT IS ORDERED as follows:
1. That the Motion of Objection (Based on Non-Receipt of Magistrates
Recommendation to the Court [#37] filed March 27, 2013, is DENIED; and

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2. That the Motion of Objection To Grant / Deny Order [#46] filed July 8,
2013, is DENIED.
Dated February 25, 2014, at Denver, Colorado.
BY THE COURT:

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