Simmons v. Falk et al

Filing 23

ORDER. ORDERED that the Motion Seeking Relief From Judgment Pursuant to Fed. R. Civ. P. 60(b) 22 is construed as filed pursuant to Fed. R. Civ. P. 59(e) and is denied, by Judge Lewis T. Babcock on 4/15/13.(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

On April 8, 2013, Applicant, Leo Simmons, submitted a Motion Seeking Relief
From Judgment Pursuant to Fed. R. Civ. P. 60(b), ECF No. 22. 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). The Court construes the Motion Seeking Relief as filed in response to the
Court’s March 18, 2013 Order. The Court allowed Applicant to refile the Motion for
Reconsideration once he had sufficient evidence demonstrating that Respondents had
not sent a copy of the Preliminary Response to him. Therefore, the Motion Seeking
Relief is construed as a Motion for Reconsideration filed pursuant to Fed. R. Civ. P.
59(e). Nonetheless, for the following reasons, the Court once again denies Applicant’s
request for reconsideration of the dismissal.
In his March 11, 2013 Motion for Reconsideration, Applicant contends that he did
not receive a copy of the Preliminary Response 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 Preliminary 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, 2012. Applicant
contended there is a prison log for incoming and outgoing mail, and if he had received
any mail it would be noted on the log.
After review of Applicant’s April 8 Motion for Reconsideration, the Court finds that
Applicant still fails to demonstrate some reason why the Court should reconsider and
vacate the order to dismiss this action. Applicant contends that he requested a copy of
the incoming legal mail log, but he received a copy of the outgoing legal mail log
instead. Applicant asks that the Court assist him in obtaining the needed information,
but he does not provide any documentation showing that he requested the incoming
logs, he informed prison staff that he received the wrong logs, and he then asked for the
correct logs. The Court finds no basis for assisting Applicant and for granting
Applicant’s Motions for Reconsideration. Accordingly, it is
ORDERED that the Motion Seeking Relief From Judgment Pursuant to Fed. R.
Civ. P. 60(b), ECF No. 22, is construed as filed pursuant to Fed. R. Civ. P. 59(e) and is
denied.
DATED at Denver, Colorado, this 15th day of

April

, 2013.

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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