Faircloth v. Schwartz, et al

Filing 102

ORDER: The Motion to Supplement [# 100 ] is granted. Plaintiffshall file a motion to amend his complaint, with an attached proposed amended complaint, on or before 10/4/2013. The Motion to Amend [# 99 ] is DENIED as moot. The Motion to Extend [# 96 ] is DENIED as moot. The Motion to Reconsider [# 93 ] is DENIED. Defendants shall file a Reply to Plaintiff's Response [# 99 ] to their Motion to Dismiss [# 89 ] on or before 10/18/2013. By Magistrate Judge Kristen L. Mix on 9/16/2013.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02764-REB-KLM
JAMES FAIRCLOTH,
Plaintiff,
v.
CELIA SCHWARTZ, Legal Assistant for BVCF, in her official and individual capacities, and
GERRY BLAND, Hearings Officer for BVMC/BVCF, in his official and individual capacities,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendants’ Motion to Dismiss [Third]
Amended Complaint (Doc. 79-1) [Docket No. 89; Filed August 19, 2013] (the “Motion to
Dismiss”); on Plaintiff’s Motion for Reconsideration of Magistrate’s Judge Mix Order
on August 26, 2013 [sic] [Docket No. 93; Filed September 3, 2013] (the “Motion to
Reconsider”); on Plaintiff’s Petition for Extension of Time [Docket No. 96; Filed
September 6, 2013] (the “Motion for Extension”); on Plaintiff’s Petition for Leave to File
Amended Complaint [Docket No. 99; Filed September 11, 2013] (the “Motion to Amend”);
and on Plaintiff’s Petition for Leave to Supplement the Previously Sent Amended
Complaint Dated September 9, 2013 [Docket No. 100; Filed September 12, 2013] (the
“Motion to Supplement”).
The Court first considers Plaintiff’s Motion to Reconsider [#93]. A motion for
reconsideration “is an extreme remedy to be granted in rare circumstances.” Brumark
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Corp. v. Samson Res. Corp., 57 F.3d 941, 944 (10th Cir. 1995). It is well established in the
Tenth Circuit that grounds for a motion to reconsider are typically limited to the following:
“(1) an intervening change in the controlling law; (2) new evidence previously unavailable;
and (3) the need to correct clear error or prevent manifest injustice.” Servants of Paraclete
v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citing Brumark, 57 F.3d at 948). Therefore,
a motion to reconsider is “appropriate [only] where the court has misapprehended the facts,
a party’s position, or the controlling law. It is not appropriate to revisit issues already
addressed or advance arguments that could have been raised in prior briefing.” Id.
Plaintiff, who proceeds in this matter as a pro se litigant, is incarcerated at Crowley
County Correctional Facility. He asks the Court to revisit its previous ruling regarding
photocopying privileges at this facility. See Order [#91]. He does not indicate that there
has been an intervening change in the controlling law or that he has obtained new evidence
previously unavailable; thus, the Court construes the request for reconsideration as an
argument “to correct clear error or prevent manifest injustice.” See Servants of Paraclete,
204 F.3d at 1012.
Plaintiff first argues that his case is a civil rights action regarding current
confinement, and thus that he is allowed to have automatic access to the photocopies he
needs for this lawsuit. Motion to Reconsider [#93] at 1; see Carper v. DeLand, 54 F.3d
613, 616-17 (10th Cir. 1995). However, while the events giving rise to Plaintiff’s lawsuit may
have occurred while Plaintiff was incarcerated, see Am. Compl. [#57], there is no indication
that his claims involve conditions that impose an ongoing atypical and significant hardship
on him, as contemplated by Carper v. DeLand. See Fogle v. Pierson, 435 F.3d 1252, 1259
(10th Cir. 2006). The Court therefore finds that Plaintiff’s first basis for reconsideration is
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without merit.
Plaintiff next argues that his original motion [#66] was misconstrued by the Court as
seeking unlimited free copies. Although the Court discussed access to free photocopies
in its analysis of Plaintiff’s request, this was not the ultimate basis for its holding. See
Order [#91]. As the Court noted, prisons may create reasonable regulations that “are
necessary to balance the legitimate interests of inmate litigants with budgetary
considerations and to prevent abuse.” Id. (quoting Harrell v. Keohane, 621 F.2d 1059,
1061 (10th Cir. 1980)). The Court further noted that “an incarcerated plaintiff must also live
within his budgetary constraints.” Order [#91] (citing Shabazz v. Parsons, 127 F.3d 1246,
1248-29 (10th Cir. 1997)). None of the case law cited by Plaintiff stands for the proposition
that an incarcerated litigant must be provided with unlimited photocopying opportunities in
the circumstances presented by Plaintiff’s current civil action. Accordingly, the Court
denies Plaintiff’s Motion to Reconsider [#93].
In the Motion to Extend [#96], Plaintiff seeks an extension of time in which to file a
Response to Defendants’ Motion to Dismiss [#89]. On September 11, 2013, Plaintiff timely
filed his Response [#98]. Accordingly, the Motion to Extend is denied as moot.
In the Motion to Amend, Plaintiff seeks leave to file the amended complaint he
provides to the Court. See [#99-1]. In the Motion to Supplement [#100], Plaintiff states that
he filed the previous Motion to Amend [#99] because he did not know whether he had been
granted a previous extension and because he wanted to be timely. He here seeks an
extension of time in order to complete his proposed amended complaint and to submit it
to the Court. Based on these averments,

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IT IS HEREBY ORDERED that the Motion to Supplement [#100] is granted. Plaintiff
shall file a motion to amend his complaint, with an attached proposed amended complaint,
on or before October 4, 2013.
IT IS FURTHER ORDERED that the Motion to Amend [#99] is DENIED as moot.
IT IS FURTHER ORDERED that the Motion to Extend [#96] is DENIED as moot.
IT IS FURTHER ORDERED that the Motion to Reconsider [#93] is DENIED.
IT IS FURTHER ORDERED, sua sponte, that Defendants shall file a Reply to
Plaintiff’s Response [#99] to their Motion to Dismiss [#89] on or before October 18, 2013.

Dated: September 16, 2013

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