Simmons v. Falk et al

Filing 21

ORDER Denying without prejudice 20 Motion for Reconsideration, by Judge Lewis T. Babcock on 3/18/13.(sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02742-LTB
LEO SIMMONS,
Applicant,
v.
JAMES FALK, Warden, and
JOHN SUTHERS, Attorney General,
Respondents.

ORDER DENYING MOTION FOR RECONSIDERATION

This matter is before the Court on the Motion for Reconsideration that Applicant
filed on March 11, 2013. Applicant contends that he did not receive a copy of the
Preliminary Response that Respondents filed with the Court on November 21, 2013,
although Respondents have filed two certificates of service with the Court, one on
November 21, 2012, (indicating the Response would be mailed on November 23, 2012),
and the other on December 21, 2013, indicating a copy of the Preliminary Response
was mailed to Applicant on December 21. Applicant contends there is a prison log for
incoming and outgoing mail and if he had received any mail it would be noted on the
log.
The Court must construe the Motion liberally because Applicant 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 deny the
Motion for Reconsideration.

Final decisions are those that end the litigation on the merits and leave nothing
for the district court to do except execute the judgment. Van Cauwenberghe v. Biard,
486 U.S. 517, 521-22 (1988); In re Durability, Inc., 893 F.2d 264, 265 (10th Cir. 1990).
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 twenty-eight days
after the judgment is entered. See Fed. R. Civ. P. 59(e). The Court will consider
Applicant’s Motion for Reconsideration pursuant to Rule 59(e) because it was filed
within twenty-eight days after the Judgment was entered in this action on February 22,
2013. See Van Skiver, 952 F.2d at 1243 (stating that a motion to reconsider should be
construed as filed pursuant to Rule 59(e) when it is filed within the ten-day limit (limit
effective prior to December 1, 2009) set forth under Rule 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).
The two certificates of service provided by Respondents correctly note
Applicant’s address; the same address used by the Court to send correspondence to
Applicant. Although Applicant asserts that if any legal mail was received by the prison it
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would be noted on the prison log, he has not submitted to the Court a copy of the prison
log showing that from November 21, 2012, forward there are no entries for legal mail
from Respondents to Applicant. Accordingly, it is
ORDERED that the Motion for Reconsideration is denied without prejudice with
leave to refile once Applicant has sufficient evidence to demonstrate to the Court that
Respondents failed to send a copy of the Preliminary Response to him.
DATED at Denver, Colorado, this 18th day of

March

, 2013.

BY THE COURT:

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

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