Fogle v. Miller
Filing
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ORDER Denying Motions. ORDERED that Applicant's motion to reconsider 7 is DENIED and Applicant's motion for appointment of counsel 8 is DENIED as moot, by Judge Lewis T. Babcock on 4/18/13. (sgrim)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00486-LTB
RONALD JENNINGS FOGLE,
Applicant,
v.
MICHAEL MILLER, Warden,
Respondent.
ORDER DENYING MOTIONS
Applicant, Ronald Jennings Fogle, has filed pro se a letter to the Court (ECF No.
7) asking the Court to reconsider and vacate the Order of Dismissal (ECF No. 5) and
the Judgment (ECF No. 6) entered in this action on April 4, 2013. Mr. Fogle also has
filed a second letter to the Court (ECF No. 8) asking the Court to appoint counsel to
represent him in this action. The Court must construe the motions liberally because Mr.
Fogle is not represented by an attorney. 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
discussed below, the motions 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 twenty-
eight days after the judgment is entered. See Fed. R. Civ. P. 59(e). The Court will
consider the motion to reconsider filed by Mr. Fogle 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.
Mr. Fogle initiated this action by filing pro se an Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241 and a letter to the Court stating that his mother
would be paying the $5.00 filing fee. On February 25, 2013, Magistrate Judge Boyd N.
Boland entered an order directing Mr. Fogle to cure certain deficiencies if he wished to
pursue his claims in this action. Specifically, Magistrate Judge Boland ordered Mr.
Fogle either to pay the $5.00 filing fee or to file a properly supported motion seeking
leave to proceed in forma pauperis within thirty days. Mr. Fogle was warned that the
action would be dismissed without further notice if he failed to cure the deficiencies
within the time allowed. On April 4, 2013, the Court entered an order dismissing this
action without prejudice because Mr. Fogle failed within the time allowed to cure the
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deficiencies. Mr. Fogle alleges in the motion to reconsider that his mother paid the filing
fee for this action on March 6, 2013.
Upon consideration of the motion to reconsider and the entire file, the Court finds
that Mr. Fogle fails to demonstrate some reason why the Court should reconsider and
vacate the order to dismiss this action because the Court has no record that the filing
fee for this action has been paid. Therefore, the motion to reconsider will be denied.
Mr. Fogle is reminded, however, that the Court dismissed the instant action without
prejudice. Therefore, if Fogle wishes to pursue his claims, he may do so by filing a new
action. The motion for appointment of counsel will be denied as moot. Accordingly, it is
ORDERED that Applicant’s motion to reconsider (ECF No. 7) is DENIED and
Applicant’s motion for appointment of counsel (ECF No. 8) is DENIED as moot.
DATED at Denver, Colorado, this
18th
day of
April
, 2013.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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