McDonald v. State of Colorado, The, et al.,

Filing 10

ORDER Denying Motion to Vacate Judgment. ORDERED that Motion for Rehearing: Motion for Closed Door Hearing With Oral Arguments and Testimony From Confidential Witness 9 is DENIED, by Judge Lewis T. Babcock on 11/7/12.(sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-02681-LTB
KIRK MCDONALD,
Plaintiff,
v.
THE STATE OF COLORADO,
HONORABLE R. THOMAS MOORHEAD, and
HONORABLE SHEILA A. RAPPAPORT,
Defendants.

ORDER DENYING MOTION TO VACATE JUDGMENT

Plaintiff, Kirk McDonald, filed pro se on November 2, 2012, a document titled
“Motion for Rehearing: Motion for Closed Door Hearing With Oral Arguments and
Testimony From Confidential Witness” (ECF No. 9) in which he asks the Court to
reconsider and vacate the Order of Dismissal and the Judgment entered in this action
on October 18, 2012. The Court must construe the motion liberally because Mr.
McDonald is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 52021 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). For the reasons
discussed below, the motion will be denied.
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 alter or amend the judgment must be filed within twentyeight days after the judgment is entered. See Fed. R. Civ. P. 59(e). The Court will
consider Mr. McDonald’s motion pursuant to Rule 59(e) because the motion was filed
within twenty-eight days after the Judgment was entered in this action. See Van Skiver,
952 F.2d at 1243 (stating that motion to reconsider filed within ten-day limit for filing a
Rule 59(e) motion under prior version of that rule should be construed as a Rule 59(e)
motion).
A Rule 59(e) motion may be granted “to correct manifest errors of law or to
present newly discovered evidence.” Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir.
1997) (internal quotation marks omitted). Relief under Rule 59(e) also is appropriate
when “the court has misapprehended the facts, a party’s position, or the controlling law.”
Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). However, a
Rule 59(e) motion is not a new opportunity to revisit issues already addressed or to
advance arguments that could have been raised previously. See id.
The Court dismissed the instant action pursuant to the abstention doctrine in
Younger v. Harris, 401 U.S. 37 (1971), because Mr. McDonald is challenging orders
entered in ongoing state court proceedings and the failure to enter orders in ongoing
state court proceedings. The Court also noted that the named Defendants in this action
are entitled to immunity.
After review of the motion to reconsider and the entire file, the Court finds that
Mr. McDonald fails to demonstrate some reason why the Court should reconsider and
vacate the order to dismiss this action. The Court remains convinced that this action
properly was dismissed, and Mr. McDonald fails to present any argument in the motion
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to reconsider that addresses the reasons the Court dismissed this action. Therefore,
the motion to reconsider will be denied. Accordingly, it is
ORDERED that “Motion for Rehearing: Motion for Closed Door Hearing With Oral
Arguments and Testimony From Confidential Witness” (ECF No. 9) filed on November
2, 2012, is DENIED.
DATED at Denver, Colorado, this 7th day of

November

BY THE COURT:

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

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, 2012.