Twitty v. Berkebile
ORDER denying 5 Motion to Reconsider, by Judge Lewis T. Babcock on 7/19/12.(lygsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01635-LTB
ANDRE J. TWITTY, also known as
A. J. TWITTY, also known as
D. BERKEBILE, Warden,
ORDER DENYING MOTION TO RECONSIDER
This matter is before the Court on the motion titled “Motion to Amend or Alter
Judgment for an Abuse of Discretion, Rule 59e, Brief in Support” (ECF No. 5) submitted
pro se by Applicant, Andre J. Twitty, also known as A. J. Twitty and as Andre Twitty,
filed with the Court on July 12, 2012.
Mr. Twitty seeks reconsideration of the Order of Dismissal and Judgment filed on
June 29, 2012, denying his application for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. Mr. Twitty is a prisoner in the custody of the United States Bureau of Prisons
who currently is incarcerated at the United States Penitentiary, Administrative
Maximum, in Florence, Colorado
The Court must construe the July 12 motion liberally because Mr. Twitty 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
motion will be construed as a motion to reconsider, and denied.
The Court denied the “Motion to Vacate Judgment as a Matter of Law Brief in
Support” (ECF No. 1) and dismissed the action without prejudice because Mr. Twitty
was not represented by a licensed attorney admitted to practice in the United States
District Court for the District of Colorado, and failed to comply with the steps outlined in
Twitty v. Davis, No. 10-cv-02309-ZLW, 2010 WL 6283541 (D. Colo. Oct. 27, 2010) (not
published), in order to obtain the Court’s permission to proceed pro se. The reasons
for the dismissal are explained in greater detail in the June 29 dismissal order.
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. Twitty’s motion to reconsider pursuant to Fed. R. Civ. P. 59(e) because
it was filed within twenty-eight days after the judgment was entered in this action on
June 29. 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).
Upon consideration of the entire file, the Court finds and concludes that Mr.
Twitty fails to demonstrate some reason why the Court should reconsider and
vacate the decision to dismiss this action. Therefore, the motion to reconsider will be
Accordingly, it is
ORDERED that the motion titled “Motion to Amend or Alter Judgment for an
Abuse of Discretion, Rule 59e, Brief in Support” (ECF No. 5) submitted pro se by
Applicant, Andre J. Twitty, and filed with the Court on July 12, 2012, and which the
Court has construed as a motion to reconsider filed pursuant to Fed. R. Civ. P. 59(e), is
DATED at Denver, Colorado, this
19th day of
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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