Pinson et al. v. Berkebile
ORDER denying 39 Motion to reconsider/vacate judgment. By Judge Raymond P. Moore on 2/9/2015.(tscha, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 12-cv-03006-RM
ORDER DENYING MOTION TO RECONSIDER
At issue is Applicant Jeremy Pinson’s Motion to Vacate Judgment Based on Newly
Discovered Evidence, ECF No. 39, filed on February 5, 2015. 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.
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). This case was
dismissed on April 25, 2012, on the merits. A motion to reconsider filed more than twenty-eight
days after the final judgment in an action should be considered pursuant to Rule 60(b). See Id.
(stating that a motion to reconsider should be construed as filed pursuant to Rule 59(e) when it is
filed within the limit set forth under Rule 59(e)).
Relief under Rule 60(b) is appropriate only in extraordinary circumstances. See
Massengale v. Oklahoma Bd. of Examiners in Optometry, 30 F.3d 1325, 1330 (10th Cir. 1994).
The decision to grant relief under Rule 60(b) is discretionary; and Applicant has the burden to
show that exceptional circumstances exist that require the Court to amend or vacate a final
judgment or order. Servants of Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000). Upon
consideration of the Motion to Reconsider and the entire file, the Court finds that Applicant fails
to demonstrate some reason why the Court should reconsider and vacate the March 13, 2014
Order of Dismissal.
In the Motion to Reconsider, Applicant asserts that due to his recent evaluation and
experts’ findings that he is “actively psychotic” this action should be reopened. ECF No. 39 at 1.
Applicant further asserts the evaluation “casts a shadow upon these proceedings such that they
should be reopened on this evidence.” Id. Applicant’s assertions are conclusory and vague and
fail to show that exceptional circumstances exist to reopen this case. The Motion to Reconsider,
therefore, will be denied. Accordingly, it is
ORDERED that the Motion to Vacate Judgment, ECF No. 39, filed on February 5, 2015,
is construed as a Motion to Reconsider filed pursuant to Fed. R. Civ. P. 60(b) and is denied.
DATED February 9, 2015, at Denver, Colorado.
BY THE COURT:
RAYMOND P. MOORE
United States District Judge
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