Jones v. Daniel et al

Filing 21

ORDER denying 19 Motion to Reconsider, by Judge Lewis T. Babcock on 8/27/12.(lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01388-LTB
ANTOINE JONES,
Plaintiff,
v.
WARDEN CHARLES DANIEL,
WARDEN BLAKE R. DAVIS,
WARDEN SARA M. REVELL,
WARDEN J. M. WILNER,
A.W. J. C. HOLLAND,
MAILROOM SUPERVISOR, Unknown Name, and
MAILROOM STAFF, Unknown Staff,
Defendants.

ORDER DENYING MOTION TO RECONSIDER

On August 22, 2012, Plaintiff filed a “Motion to Reconsidered [sic] This Court 810-2012 Order,” ECF No. 19. The Court must construe the filing 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 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). This case was dismissed on August 10, 2012, because Plaintiff failed
to pay the $350.00 filing fee in full as he was directed to do by the Court. A motion to

reconsider filed within twenty-eight days after the final judgment in an action should be
considered pursuant to Rule 59(e). See Id. (stating that a motion to reconsider should
be construed as filed pursuant to Rule 59(e) when it is filed within the time limit set forth
under Rule 59(e)). Plaintiff’s request was filed within twenty-eight days after the Court’s
Order of Dismissal was entered on August 10, 2012. Therefore, the filing is construed
as a Motion to Reconsider filed pursuant to Fed. R. Civ. P. 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).
On July 5, 2012, the Court entered an order denying Plaintiff leave to proceed
pursuant to 28 U.S.C. § 1915 because he is subject to filing restrictions under
§ 1915(g). Plaintiff was directed to pay the $350.00 filing fee in full and was instructed

that the only proper filing at this time is the payment of the fee. In the Motion, Plaintiff
asks that the Court reconsider the August 10 Order of Dismissal because he had
problems sending the legal package that was requested by the Court. Although on
August 14, 2012, the Court received a Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915 and a copy of Plaintiff’s prisoner complaint, Plaintiff did
not submit the $350.00 filing fee in full to the Court as he had been instructed to do in
the July 5 Order. Because Plaintiff failed to comply with the July 5 Order within the time

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allowed, the Complaint and action were dismissed. Plaintiff, therefore, fails to
demonstrate some reason why the Court should reconsider and vacate the order to
dismiss this action. Accordingly, it is
ORDERED that the Motion for Reconsideration, ECF No. 19, filed on August 22,
2012, is construed as a Motion to Reconsider filed pursuant to Fed. R. Civ. P. 59(e) and
is denied.
DATED at Denver, Colorado, this

27th day of

August

, 2012.

BY THE COURT:

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

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