Robledo-Valdez v. Smelser et al

Filing 128

ORDER that Plaintiffs Petition for a Rehearing (and Reconsideration) ECF No. 118 is DENIED. In light of this ruling, it is ORDERED that Plaintiffs Request for a Status/Ruling Information filed April 18,2014 ECF No. 127 is DENIED AS MOOT, by Judge Wiley Y. Daniel on 5/2/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 12-cv-01833-WYD-KLM
CRAIG ROBLEDO-VALDEZ,
Plaintiff,
v.
DICK SMELSER, et al.,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on Plaintiff’s Petition for a Rehearing (and
Reconsideration) filed January 9, 2014. Responses were filed to the Petition, which I will
refer to as a motion, on February 6, 2014, and a reply was filed on February 25, 2014.
Plaintiff also filed a letter referring to the motion on March 26, 2014, and filed a “Request
for a Status/Ruling Information” on April 18, 2014, that seeks the status of his motion. For
the reasons discussed below, Plaintiff’s motion is denied.
The motion seeks reconsideration of my Order Affirming and Adopting
Recommendation of United States Magistrate Judge filed on January 2, 2014 [“January 2,
2014 Order”], which dismissed this case without prejudice as a sanction pursuant to Fed.
R. Civ. P. 41(b) in accordance with the Order and Recommendation of Magistrate Judge
Mix filed on July 24, 2014. In that Recommendation, Magistrate Judge Mix noted that
despite the Court’s clear warnings about the consequences, Plaintiff failed to respond to
Orders to Show Cause issued by her related to Plaintiff’s failure to serve Defendants (the

“Service OSC”, ECF No. 76) and his failure to pay fees ordered by the Court (the “Fees
OSC”, ECF No. 77).1 Magistrate Judge Mix ordered that the Service OSC and Fees OSC
be made absolute, and recommended dismissal without prejudice of the case as a sanction
after analyzing the appropriate factors under Ehrenhaus v. Reynolds, 965 F.2d 916, 918
(10th Cir. 1992). Judgment was entered against Plaintiff on January 3, 2014.
Since Plaintiff’s motion was filed less than twenty-eight days after the Judgment, I
may construe it “either as a motion to alter or amend the judgment under Fed. R. Civ. P.
59(e) or as a motion for relief from the judgment under Fed. R. Civ. P. 60(b).”
Commonwealth Prop. Advocates, LLC v. Mortg. Electronic Registration Sys., Inc., 680 F.3d
1194, 1200 (10th Cir. 2011). The manner in which it will be construed “depends upon the
reasons expressed by the movant.” Id. “A Rule 59(e) motion is the appropriate vehicle ‘to
correct manifest errors of law or to present newly discovered evidence.’” Id. (quoting
Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997)). “A Rule 60(b) motion is
appropriate for, among other things, ‘mistake, inadvertence, surprise, or excusable neglect’
and ‘newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial.’” Id. (quoting Fed. R. Civ. P. 60(b)(1), (2)).
In the case at hand, I find that Plaintiff’s motion should not be characterized as a
Rule 59(e) motion. Plaintiff did not argue or show that reconsideration is appropriate to
correct manifest errors of law, nor did he cite newly established evidence. Instead, I find

1

The Service OSC ordered Plaintiff to show cause why the Court should not recommend that the
case against Defendants Dick Smelser, Ray Romero, Tiano Lucero, Sergeant Peister, Daniel Chavez, and
C. Reyes (the “Unserved Defendants”) be dismissed pursuant to Fed. R. Civ. P. 4(m) and 41(b). (Order
Affirming and Adopting Recommendation of United States Magistrate Judge, ECF No. 111, at 2.) The
Fees OSC ordered Plaintiff to show cause why the case should not be dismissed in its entirety pursuant to
Fed. R. Civ. P. 41(b) for failure to comply with the Court’s Orders, the Federal Rules of Civil Procedure,
and the Local Rules of this Court related to Plaintiff’s filing fee payments. (Id.)

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that the motion should be addressed under Rule 60(b). Indeed, Plaintiff clarifies in this
reply that the court should consider his excusable neglect.
Relief under Rule 60(b) is discretionary and is warranted only in exceptional
circumstances.” Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991); see
also Servants of the Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000). As to
Plaintiff’s reliance on Rule 60(b)(1), his motion should be denied because he has failed to
establish excusable neglect. The burden of proving excusable neglect rests with the party
moving to have the judgment set aside. See Pelican Prod. Corp. v. Marino, 893 F.2d 1143,
1146 (10th Cir. 1990). Relevant factors for the Court to consider include the danger of
prejudice to the opposing party, the potential impact on judicial proceedings, the reason for
the mistake—including whether it was within the reasonable control of the movant—and
whether the movant acted in good faith. Jennings v. Rivers, 394 F.3d 850, 856 (10th Cir.
2005). The Court may also consider “whether the mistake was a single unintentional
incident.” Id. at 857. The reason for the mistake is the most important factor in determining
whether neglect is excusable. Id. “Carelessness by a litigant or his counsel does not afford
a basis for relief under Rule 60(b)(1).” Pelican Prod. Corp., 893 F.2d at 1146. Likewise,
a parties pro se status does not afford a basis for relief under Rule 60(b)(1). Andrews v.
Colorado, 2009 U.S. Dist. LEXIS 99750, *6 (D. Colo. Oct. 9, 2009).
Here, Plaintiff argues that he failed to comply with the Court’s orders regarding
service of process on the unserved Defendants because he was in jail and unable to find
the unserved Defendants. He also asserts that any attempt to obtain the addresses for the
unserved Defendants would have been met with hostility from prison officials. However,
a motion for reconsideration is not an opportunity to relitigate issues already decided by the
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court. See FDIC v. United Pacific Ins. Co., 152 F.3d 1266, 1272 (10th Cir. 1998); Van
Skiver, 952 F.2d at 1243-44. Both of these arguments have already been considered and
rejected by me. Indeed, my Order of January 2, 2014, acknowledged the difficulties that
a prisoner faces while incarcerated, but determined that Plaintiff’s prisoner status did not
provide a basis to disregard or fail to comply with the Court’s numerous orders. (January
2, 2014 Order at 5.)
Plaintiff also argues that he did try to attempt to obtain the addresses of the
defendants while in prison and was retaliated against. Further, he asserts that his mother
had offered to help with the case but did not do so. These allegations are notably absent
from his objection to Magistrate Judge Mix’s Recommendation, and should have been
known to Plaintiff at the time of this filing.2 “Rule 60(b)(1) is not available to allow a party
merely to reargue an issue previously addressed by the court when the reargument merely
advances new arguments or supporting facts which were available for presentation at the
time or the original argument.” Cashner v. Freedom Stores, Inc., 98 F.3d 572, 577 (10th
Cir. 1996). Further, any attempts Plaintiff made to obtain the addresses should have been
made in response to the Court’s Orders to Show Cause, not many months after the fact.
In sum, I agree with Defendants that Plaintiff has not put forth any new evidence or
presented any arguments demonstrating that his neglect in this action was anything other
than carelessness on his part. Further, Plaintiff is attempting to present many of the same
arguments that have already been rejected by this Court. Accordingly, to the extent

2

The only person the objection refers to that Plaintiff tried to obtain the address of was a “Daniel
Cortese”, which he asserts is the “Darren Cortese” who is a defendant in this case.

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Plaintiff seeks to alter or reconsider the Court’s January 2, 2014 Order dismissing the case
as a sanction in relation to the Service OSC, I find his motion is properly denied.
With regard to the Fees OSC, Plaintiff has not demonstrated that his repeated failure
to comply with the Court’s numerous orders to pay filing fees was the result of excusable
neglect.

While he continues to argue that he could not pay the fees due to his

incarceration, this argument has already been considered and rejected by me as a basis
to avoid dismissal of this case under Fed. R. Civ. P. 41(b). Indeed, Plaintiff’s failure to pay
fees was not a single isolated incident, but instead a regular practice. Plaintiff had been
warned on numerous occasions that his failure to comply with the Court’s orders
concerning the payment of the filing fee could result in the dismissal of his case. Further,
he failed numerous times to respond to orders to show cause as to the fees, which is when
he should raised the arguments he is making now.
Thus, on July 13, 2012, Plaintiff was informed of his monthly obligation to pay the
filing fee or to show cause why he could not make the payment. He was also warned that
failure to comply could result in the dismissal of his case. Despite this warning, Plaintiff
failed to make any monthly filing fee payments for the months of August and September
and failed to show cause why he was unable to make monthly payments. The Court issued
a Show Cause Order on October 3, 2012, again warning Plaintiff that his failure to comply
with the Court’s July 13th Order could result in the dismissal of his case. Plaintiff again
failed to make any monthly filing fees payments for the months of December, January,
March, April, May, and June and failed to show cause why he was unable to make monthly
payments. The Court issued another Show Cause Order on July 1, 2013, again warning
Plaintiff that his failure to comply with the Court’s orders concerning the filing fee could
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result in the dismissal of his case. Plaintiff failed to timely respond to the Court’s Show
Cause Order and continued to disregard the Court’s orders by failing to make monthly filing
fee payments for the months of August, September, and November. Plaintiff’s failure to
comply with the Court’s numerous orders or to show cause why he was not complying has
interfered with the effective administration of justice.
Rather than take accountability for his actions and inactions, Plaintiff again attempts
to shift the blame to his mother stating “my mother assured me that she would pay at least
$25.00 a month to this Court.” (Petition for Rehearing at 4.) However, Plaintiff bears the
burden of ensuring that he is in compliance with the Court’s orders. Given the numerous
times that Plaintiff was warned on this particular issue, he should have taken more care to
ensure that his obligations were being met. Plaintiff’s carelessness does not afford a basis
for relief under Rule 60(b)(1). See Jennings, 394 F.3d at 857.
Finally, to the extent Plaintiff seeks relief under Rule 60(b)(6), his motion is denied
because he has failed to establish that such relief is warranted in this case. Rule 60(b)(6)
permits the court to relieve a party from final judgment for “any other reason justifying
relief.” The Tenth Circuit has described Rule 60(b)(6) as a “grand reservoir of equitable
power to do justice in a particular case.” Cashner, 98 F.3d at 579. Despite the broad
power given to courts under this provision, it has been interpreted very narrowly—a court
“may grant a Rule 60(b)(6) motion only in extraordinary circumstances and only when
necessary to accomplish justice.” Id. at 580 (citations omitted). Plaintiff has not asserted
any facts or issues that are so “unusual or compelling” that extraordinary relief is warranted
or that it would offend justice to deny such relief. Cashner, 98 F.3d at 580.

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Based upon the foregoing, it is
ORDERED that Plaintiff’s Petition for a Rehearing (and Reconsideration) (ECF No.
118) is DENIED. In light of this ruling, it is
ORDERED that Plaintiff’s “Request for a Status/Ruling Information” filed April 18,
2014 (ECF No. 127) is DENIED AS MOOT.
Dated: May 2, 2014
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge

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