Cary v. Hickenlooper et al
ORDER re: 84 Objection to Defendant Dismissal/Motion for Definite Statement filed by Arnold A. Cary. it is ORDERED that Plaintiffs Motion for Reconsideration is DENIED, by Judge Raymond P. Moore on 1/15/2015. (evana, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 12-cv-02072-RM-KJM
ARNOLD A. CARY,
DAVID TESSIER, CTCF, Health Services Administrator,
SUSAN M. TIONA, M.D., CTCF, Health Services Physician and Fremont County
JOHN V. BUGLEWICZ, M.D., CTCF, Health Services Physician and Fremont County
LINDSEY 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,
ORDER DENYING PLAINTIFF’S MOTION TITLED “OBJECTION TO DEFENDANT
DISMISSAL/MOTION FOR DEFINITE STATEMENT”
Plaintiff Arnold A. Cary, a Colorado state prisoner proceeding pro se, filed what he refers
to as an “Objection to Defendant Dismissal/Motion for Definite Statement” (ECF No. 84)
(hereinafter the “Objection”) on October 29, 2014. Mr. Cary requests a “de novo review
pursuant to Fed. R. Civ. P. 72(b) to understand the mechanic [sic]” of the Court’s Order adopting
the Magistrate Judge Mix’s recommendations (ECF Nos. 63 & 64) and overruling Plaintiff’s
objections (ECF No. 81). Plaintiff also objects to what he calls “the vague and ambiguous orders
which conflict with each other,” and requests clarification of the Court’s ruling, asking for a
“more definite statement.” (ECF No. 84). Finally, Plaintiff “objects to the dismissal of all
defendants”—inaccurately assessing the disposition in the prior Order—which he believes
renders his action “void.” (Id.).
The Court must construe Plaintiff’s filings liberally because he is a pro se litigant. See
Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). As such, the Court interprets his request for this Court to conduct a “de novo review” of
its own ruling as a motion for reconsideration pursuant to Fed. R. Civ. P. 59(e) (hereinafter “the
Motion”). Plaintiff also requests a “more definite statement” of its ruling in the Order—
ostensibly pursuant to Fed. R. Civ. P. 12(e), given the language he used. However, Rule 12(e) is
directed only at parties; litigants cannot use the rule to ask the Court to clarify its own order.
What it seems Plaintiff truly seeks in his request for a “more definite statement” is a reexplanation of the Court’s previous Order’s implications for him. To the extent that clarifying
the Court’s Order will benefit Plaintiff, the Court will clarify it. However, this Court denies the
reconsideration Plaintiff requests in his filing for the reasons below. The Court will first address
his Motion for Reconsideration, and then turn to his request for clarification.
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). Mr. Cary
filed his present motion within twenty-eight days after the Order was entered in the instant
action. The Court, therefore, finds that the Motion for Reconsideration is filed pursuant to Rule
59(e). See Fed. R. Civ. P. 59(e). The three major grounds that justify reconsideration are: (1) an
intervening change in the 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). Upon review of the Motion and the entire file, the Court
concludes that no grounds justifying reconsideration exist in Mr. Cary’s case. This Court denies
his Motion for Reconsideration.
Calling the Court’s Order “vague and ambiguous,” Plaintiff also asks for clarification.
He appears confused about the interrelationship between a magistrate judge’s recommendation
and a district court judge’s subsequent order on a recommendation. (ECF No. 84). In the
Court’s Order (ECF No. 81), Plaintiff was advised of the mechanics of a district court’s review
of a magistrate judge’s recommendation. (Id. at 2). To restate, when a magistrate judge issues a
recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that
the district court judge “determine de novo any part of the magistrate judge’s [recommendation]
that has been properly objected to.” In conducting its review, “[t]he district judge may accept,
reject, or modify the recommended disposition; receive further evidence; or return the matter to
the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3).
In the Court’s “Order Adopting Magistrate’s Recommendations and Overruling
Plaintiff’s Objections (ECF No. 81),” the Court accepted Magistrate Judge Mix’s recommended
disposition (ECF No. 63) in its entirety, pursuant to Fed. R. Civ. P. 72(b)(3). Magistrate Judge
Mix’s findings were: 1) that Lindsey Fish DePena is dismissed from this case; 2) Plaintiff’s
second claim (described in detail in ECF No. 64 2–6) is dismissed; 3) Plaintiff’s third claim
(described in detail in ECF No. 64 7–8) is dismissed, except for the claim Plaintiff brings against
Defendant Achen regarding food sanitation. The foregoing recommendations were adopted and
made orders of this Court.
Plaintiff is apparently under the impression that all defendants were dismissed in the
Court’s order adopting the Magistrate Judge’s recommendations, rendering his action void. (See
ECF No. 84). This is untrue. As stated above, this Court has not dismissed Plaintiff’s claim
against Defendant Achen regarding food sanitation. Plaintiff may still pursue this portion of his
Based on the foregoing, it is ORDERED that Plaintiff’s Motion for Reconsideration
(ECF No. 84) is DENIED.
DATED this 15th day of January, 2015.
BY THE COURT:
RAYMOND P. MOORE
United States District Judge
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