Thompson v. Galasso et al

Filing 29

ORDER Denying Motion to Reconsider. ORDERED that the Objection 27 is construed as a Motion to Reconsider filed pursuant to Fed. R. Civ. P. 59(e) and is denied, by Judge Lewis T. Babcock on 12/10/12. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02389-LTB
RICHARD THOMPSON,
Plaintiff,
v.
ED GALASSO,
DAVE GUTIERREZ,
CATHY GUTIERREZ,
LLOYD GRION, aka LLOYD JIRON,
BLACKIE JUAN NUNEZ, and
MONA KERR,
Defendants.

ORDER DENYING MOTION TO RECONSIDER

On December 7, 2012, Plaintiff filed an Objection with the Court that in general
challenges the dismissal of this action. The Court must construe the Objection liberally
because Plaintiff 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 Court will construe the Objection as a Motion to Reconsider and deny the
Motion.
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 reconsider filed within twenty-eight days after the final

judgment in an action should be considered pursuant to Rule 59(e). See Id. (stating
that a motion to reconsider should be construed as filed pursuant to Rule 59(e) when it
is filed within the time limit set forth under Rule 59(e)). Plaintiff’s request was filed
within twenty-eight days after the action was dismissed on November 19, 2012, for
failure to cure all deficiencies. Therefore, the Objection is construed as a Motion to
Reconsider filed pursuant to Fed. R. Civ. P. 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).
On consideration of the Motion to Reconsider and the entire file, the Court finds
that the Motion fails to demonstrate some reason why the Court should reconsider and
vacate the order to dismiss this action. Although Plaintiff contends that he complied
with the September 11, 2012 Order to Cure Deficiencies, nothing he has submitted
includes a certified account statement or a proper 28 U.S.C. § 1915 Motion and
Affidavit.
Plaintiff also complains that he did not receive the prisoner packet that was sent
to him by the Clerk of the Court. However, he did submit his claims on a Courtapproved form that is used in filing prisoner complaints in this Court. Consequently,
even if Plaintiff did not receive the prisoner packet, he had access to this Court’s forms.
Again, nothing in any of the filings Plaintiff submitted to the Court subsequent to the
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September 11 Order to Cure indicates that he was unable to obtain a § 1915 Motion or
an account statement.
The Court also notes that Plaintiff misunderstands the Court’s November 19,
2012 Order of Dismissal. The Court did not assert in the Order that Plaintiff had filed a
notice of appeal with the Tenth Circuit. The Court stated that any appeal Plaintiff might
file would not be taken in good faith and he would be denied leave to proceed in forma
pauperis on appeal. Accordingly, it is
ORDERED that the Objection, ECF No. 27, submitted on December 7, 2012, is
construed as a Motion to Reconsider filed pursuant to Fed. R. Civ. P. 59(e) and is
denied.
DATED at Denver, Colorado, this 10th

day of

December

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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, 2012.