Carrillo, v. Hickenlooper, et al.,

Filing 438

ORDER denying 429 Motion for Reconsideration, by Judge Raymond P. Moore on 10/06/2015.(cthom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 12-cv-02034-RM-MEH
ALFONSO A. CARRILLO,
Plaintiffs,
v.
JOHN W. SUTTERS, Colorado Attorney General, in his official capacity as elected Colorado
Attorney General,
RICK RAEMISCH, in his individual and official capacities,
BOBBY BONNER, in his individual and official capacities,
MITCHELL MORRISSEY, in his individual and official capacity as Second Judicial District
Attorney,
MORRIS B. HOFFMAN, Judge, in his official and representative capacities,
PHIL GEIGLE, in his individual and representative capacities,
DARRYL SHOCKLEY, in his individual and representative capacities,
DANIEL CHUN, in his individual and representative capacity as Denver D.A. detective,
BRAD UYAMURA, in his individual and representative capacity as Denver D.A. detective,
FRANK THOMAS, Sheriff, in his individual and official capacities,
GARY WILSON, in his individual and official capacities,
ELIAS DIGGINS, in his individual and official capacities,
DENVER SHERIFF DEPARTMENT, in its official capacity,
DOUGLAS K. WILSON, in his individual and official capacities,
ELIZABETH PORTER-MERRILL, in her individual and official capacities,
NICHOLAS SARWAK, in his individual and official capacities,
DOUGLAS N. DARR, in his individual and official capacities,
CAROL CHAMBERS, in her individual and official capacities as 18th Judicial District
Attorney,
GEORGE H. BRAUCHLER, in his individual and official capacities as 18th Judicial District
Attorney,
TED MINK, in his individual and official capacities as elected Jefferson County Sheriff,
Defendants.

ORDER

On July 20, 2015, this Court entered an order granting all of the Defendants’ thenpending motions to dismiss. (ECF No. 421.) The Clerk of Court entered judgment in favor of
all Defendants in this case on July 21, 2015. (ECF No. 422.) On August 24, 2015, Plaintiff filed
a notice of appeal of this Court’s order and the final judgment against him to the Tenth Circuit.
(ECF No. 425.) On August 31, 2015, Plaintiff filed a “Certified Motion for New Trial and/or
Reconsideration of the Order and Final Judgment Pursuant to Fed. R. Civ. P. Rule 50(a), (b);
Rule 59(a), (b), (c) and (e)” (ECF No. 429, the “Motion for Reconsideration”).
The Motion for Reconsideration must be dismissed as untimely filed. Federal Rule of
Civil Procedure 59(e) provides that “[a] motion to alter or amend a judgment must be filed no
later than 28 days after the entry of the judgment.” Although the Court notes that Fed. R. Civ. P.
50 would not apply in this case because that rule only applies to instances where a jury trial has
taken place or is underway, the Court notes that Rule’s accord with the provisions of Fed. R. Civ.
P. 59 that motions filed pursuant to the latter rule be made not later than 28 days following the
entry of judgment. Fed. R. Civ. P. 50(d). Here, Plaintiff filed his Motion for Reconsideration on
August 31, 2015, more than one month after the Clerk of Court entered judgment against him on
July 21, 2015. Plaintiff’s motion is untimely and is therefore denied. Fed. R. Civ. P. 59(e).
The Court notes that, although the Motion for Reconsideration was technically filed on
August 31, 2015, it appears to have been dated by Plaintiff as of August 18, 2015, which would
be within the limitations period of Fed. R. Civ. P. 59(d). (ECF No. 429 at 20.) However, the
date written on Plaintiff’s motion is not sufficient to establish that this date would constitute the
true filing date. Rather, Plaintiff must satisfy the “prison mailbox rule” endorsed by the Tenth
Circuit in order to use August 18 as the effective filing date. Price v. Philpot, 420 F.3d 1158,

2

1163-65 (10th Cir. 2005). “The prison mailbox rule . . . holds that a pro se prisoner’s [filing]
will be considered timely if given to prison officials for mailing prior to the filing deadline,
regardless of when the court itself receives the documents.” Id. at 1163-64. An inmate can
obtain the benefit of the “prison mailbox rule” either by
(1) alleging and proving that he or she made timely use of the prison’s legal mail
system if a satisfactory system is available, or (2) if a legal system is not
available, then by timely use of the prison’s regular mail system in combination
with a notarized statement or a declaration under penalty of perjury of the date on
which the documents were given to prison authorities and attesting that postage
was prepaid . . . .
Id. at 1165. Plaintiff bears the burden of demonstrating that his filing was timely made.
United States v. Ceballos-Martinez, 387 F.3d 1140, 1143 (10th Cir. 2004). Here, Plaintiff did
not attach a certificate of service containing a notarized statement or declaration under penalty of
perjury as to the date his motion was mailed. Nor did Plaintiff allege or show in any way that he
made timely use of the prison’s legal mail system. Thus, Plaintiff is not entitled to the benefit of
the “prison mailbox rule” and his motion is therefore untimely filed. 1
Even if this Court were to address Plaintiff’s motion on its merits the motion would fail.
Plaintiff has presented no new or sufficient legal basis that would convince this Court to reverse
its decision to grant all of the Defendants’ respective motions to dismiss. Both this Court and
U.S. Magistrate Judge Hegarty have repeatedly addressed all of the arguments raised by Plaintiff
and have repeatedly held that they lack merit. (See ECF Nos. 72, 160, 218, 324, 381, 421.)

1

The Court notes that, in response to Plaintiff’s concurrent appeal in this matter to the Tenth Circuit, the appellate
court issued a sua sponte order to show cause why it should not dismiss Plaintiff’s appeal for failure to file his notice
of appeal within the time limits specified in the Federal Rules of Appellate Procedure, Rule 4(a)(1)(A). (ECF No.
428.) The Court acknowledges that Plaintiff has submitted an affidavit and supporting documents in response to the
appellate court’s order to show cause. (ECF Nos. 431, 432.) However, Plaintiff has filed nothing in regards to the
present motion for new trial that would satisfy his burden of showing that the motion currently before this Court was
timely filed.

3

Plaintiff has presented no new arguments that would cause the Court to change its decision, but
instead has essentially repeated the arguments made in past motions arguing against dismissal of
his claims. As before, those arguments are rejected by the Court.
Based on the foregoing, it is hereby ORDERED that Plaintiff’s Motion for
Reconsideration (ECF No. 429) is DENIED.
DATED this 6th day of October, 2015.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

4