Cary v. Hickenlooper et al

Filing 79

ORDER by Magistrate Judge Kristen L. Mix on 5/27/14. Motion to Review Newly Discovered Evidence 74 is DENIED. Motion to Compel Discovery 77 is DENIED.(lgale)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02072-RM-KLM
ARNOLD A. CARY,
Plaintiff,
v.
DAVIS TESSIER, CTCF Health Services Administrator,
SUSAN M. TIONA, M.D., CTCF, Health Services Physician and Fremont County
Commissioner,
JOHN V. BUGLEWICZ, M.D., CTCF, Health Services Physician and Fremont County
Commissioner,
LINSEY FISH DEPENA, M.D., CTCF, former Health Services Physician,
RODNEY ACHEN, CTCF, Food Services Captain,
RONALD WILLIAMS, CTCF, Lieutenant,
CHRISTINA TURNER, CTCF Sergeant, and
ROBERT BURNS, CTCF, Correctional Officer,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion to Review Newly Discovered
Evidence [#74] (the “Motion to Reconsider”) and on Plaintiff’s Motion to Compel
Discovery [#77] (the “Motion to Compel”).
incarcerated pro se individual.1

Plaintiff proceeds in this matter as an

He seeks reconsideration of the Court’s pending

1

The Court is mindful that it must construe the filings of a pro se litigant liberally. See
Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). However, the Court is not a pro se litigant's advocate, nor shall the Court “supply additional
factual allegations to round out [a pro se litigant's] complaint or construct a legal theory on [his]
behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall, 935 F.2d at
1110). In addition, Plaintiff, as a pro se litigant, must follow the same procedural rules that govern
other litigants. Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).

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Recommendation [#63] regarding dismissal of Defendant Linsey Fish DePena, whom
Plaintiff has been unable to locate for purposes of serving the Summons and Amended
Complaint in this action.
A motion for reconsideration “is an extreme remedy to be granted in rare
circumstances.” Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 944 (10th Cir. 1995).
It is well-established in the Tenth Circuit that grounds for a motion to reconsider are limited
to the following: “(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.”
Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citing Brumark, 57
F.3d at 948). Therefore, a motion to reconsider is “appropriate [only] where the court has
misapprehended the facts, a party's position, or the controlling law.” Id.
Plaintiff does not argue that there has been an intervening change in the controlling
law or that there is a need to correct clear error and prevent manifest injustice. See Motion
to Reconsider [#74]. Rather, he argues that the Court should consider new, previouslyunavailable evidence. See id. The new evidence that Plaintiff submits is the Declaration
[#75] of Nelson Merrill (“Merrill”), an inmate at Sterling Correctional Facility. Mr. Merrill
states that he became ill and was moved to Denver Reception and Diagnostic Center
(“DRDC”) from mid-February to mid-April of 2014. He states that during that time he met
with Dr. Linsey Fish DePena so she could review his condition, and she “attempted to take
away some of [his] ADA medical status . . . .”
DRDC is a facility of the Colorado Department of Corrections (“CDOC”). The Court

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has already asked the United States Marshal to serve Linsey Fish DePena twice as an
employee of CDOC. Both times, CDOC has responded that she is no longer a CDOC
employee. [#27, #60]. The second time, CDOC provided a personal address for her [#61],
filed under restriction, and the United States Marshal attempted to serve her at the personal
address, again to no avail. The United States Marshal has now made three failed attempts
to serve this Defendant, including twice at the location where Plaintiff now states that she
still works, based on the Declaration of Mr. Merrill. As noted, a motion for reconsideration
“is an extreme remedy to be granted in rare circumstances.” Brumark Corp., 57 F.3d at
944. As the Court has already twice requested the United States Marshal to serve Plaintiff
at the location where he again seeks service,
IT IS HEREBY ORDERED that the Motion to Reconsider [#74] is DENIED.
IT IS FURTHER ORDERED that the Motion to Compel [#77], which seeks an order
compelling CDOC to produce Defendant Linsey Fish DePena’s personnel records, is
DENIED. CDOC is not a party to this litigation, and the Court lacks authority to compel
non-parties to act.

Dated: May 27, 2014

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