Ortiz v. Falk et al

Filing 141

ORDER. ORDERED that plaintiff Alexis R. Ortiz's Motion Objecting To Judge Philip Brimmer's Order For Motion To Dismiss Filed By Defendants [Docket No. 98] is DENIED. ORDERED that plaintiffs'Motion Objecting [to] Judge Philip Brimmer's Order Accepting Magistrate Judges Recommendation On Docket No 96 [Docket No. 111] is DENIED by Judge Philip A. Brimmer on 11/04/14.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 13-cv-00612-PAB-MJW
ALEXIS R. ORTIZ,
Plaintiff,
v.
JAMES FALK, Warden, Sterling Correctional Facility,
BEVERLY DOWIS, Health Services Administrator, Sterling Correctional Facility,
JOANN STOCK, Physicians Assistant, Sterling Correctional Facility,
LT. HOFFMAN, Housing Lieutenant, Sterling Correctional Facility, and
MAURICE FAUVEL, Dr.,
in their individual and official capacities,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the Motion Objecting to Judge Philip
Brimmer’s Order For Motion To Dismiss Filed By Defendants [Docket No. 98] and the
Motion Objecting [to] Judge Philip Brimmer’s Order Accepting Magistrate Judge’s
Recommendation On Docket No. 96 [Docket No. 111], f iled by plaintiff Alexis R. Ortiz.
Defendants did not file a response to either motion. As such, the motions are ripe for
disposition.
I. BACKGROUND
Plaintiff objects to two orders of this Court accepting the Recommendations of
Untied States Magistrate Judge Michael J. Watanabe. On January 24, 2014, the
magistrate judge recommended that (1) defendants Falk, Hoffman, and Stock’s motion
to dismiss (Docket No. 41) be granted in part, (2) defendant Dowis’ motion to dismiss

(Docket No. 65) be granted in part, and (3) plaintiff’s motion to add defendants (Docket
No. 87) be denied. Docket No. 89 (the “first Recommendation”). Plaintiff timely
objected to the magistrate judge’s recommendation on the grounds that the statute of
limitations was equitably tolled and that “defendants’ conduct constituted a ‘continuing
wrong’” for the purposes of plaintiff’s complaint. Docket No. 90 at 2-3, ¶ 3 (citing Tiberi
v. Cigna Corp., 89 F.3d 1423, 1430 (10th Cir. 1996)). On March 13, 2014, the Court
adopted the first Recommendation. Docket No. 95 (the “March 13 Order”). The Court
held that plaintiff had waived his equitable tolling and continuing violation arguments
because he failed to raise them before the magistrate judge in response to defendants’
motions to dismiss. Docket No. 95 at 2-3. On March 18, 2014, the m agistrate judge
recommended that the Court grant defendant Fauvel’s motion to dismiss (Docket No.
91). Docket No. 96 (the “second Recommendation”). On May 27, 2014, the Court
accepted the second Recommendation. Docket No. 106 (the “May 27 Order”). Having
received no objection to the second Recommendation, the Court reviewed it to satisfy
itself that there was “no clear error on the face of the record.”1 Fed. R. Civ. P. 72(b),
Advisory Committee Notes.
Further relevant facts are set forth in detail in the first and second
Recommendations, see Docket No. 89 at 2-5, Docket No. 96 at 1-2, and will not be
recited here.

1

This standard of review is something less than a “clearly erroneous or contrary
to law” standard of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo
review. Fed. R. Civ. P. 72(b).
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II. ANALYSIS
In light of plaintiff’s pro se status, the Court construes his filings liberally. See
Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 &
n.3 (10th Cir. 1991). While styled as “objections” to two of the Court’s orders, the Court
construes plaintiff’s filings as motions for reconsideration of those orders.
The Federal Rules of Civil Procedure do not specifically provide for motions for
reconsideration. See Hatfield v. Bd. of County Comm’rs for Converse County, 52 F.3d
858, 861 (10th Cir. 1995). Instead, motions for reconsideration fall within a court’s
plenary power to revisit and amend interlocutory orders as justice requires. See
Paramount Pictures Corp. v. Thompson Theatres, Inc., 621 F.2d 1088, 1090 (10th Cir.
1980) (citing Fed. R. Civ. P. 54(b)); see also Houston Fearless Corp., 313 F.2d at 92.
However, in order to avoid the inefficiency which would attend the repeated
re-adjudication of interlocutory orders, judges in this district have imposed limits on their
broad discretion to revisit interlocutory orders. See, e.g., Montano v. Chao, No. 07-cv00735-EWN-KMT, 2008 WL 4427087, at *5-6 (D. Colo. Sept. 28, 2008) (a pplying Rule
60(b) analysis to the reconsideration of interlocutory order); United Fire & Cas. Co. v.
McCrerey & Roberts Constr. Co., No. 06-cv-00037-WYD-CBS, 2007 WL 1306484, at
*1-2 (D. Colo. May 3, 2007) (applying Rule 59(e) standard to the reconsideration of the
duty-to-defend order). Regardless of the analysis applied, the basic assessment tends
to be the same: courts consider whether new evidence or legal authority has emerged
or whether the prior ruling was clearly in error. Motions to reconsider are generally an
inappropriate vehicle to advance “new arguments, or supporting facts which were

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available at the time of the original motion.” Servants of the Paraclete v. Does, 204
F.3d 1005, 1012 (10th Cir. 2000).
A. The March 13 Order
Plaintiff argues that the March 13 Order incorrectly held that plaintiff waived his
equitable tolling and continuing violation arguments by failing to raise them in response
to defendants’ motions to dismiss. Docket No. 98 at 2-3. Plaintiff directs the Court to
Docket No. 84. In that pleading, titled “Amended Motion,” plaintiff wrote that he
“object[ed] to the defendants [sic] affirmative assertion of statute of limitations” and
argued that the statute of limitations was tolled because defendants’ conduct
constituted a continuing violation. Docket No. 84 at 2, ¶ 11. Plaintiff’s “Amended
Motion” was not in response to either motion to dismiss that was the subject of the
March 13 Order. The magistrate judge denied the Amended Motion because he could
not discern what relief the motion sought. Docket No. 86 at 1.
The Court finds no reason to construe plaintiff’s Amended Motion as a further
response to either motion to dismiss or otherwise to hold that plaintiff properly raised
the equitable tolling or continuing violation arguments before the magistrate judge. The
Amended Motion was filed on January 10, 2014, more than a month after the final
briefing on the motions to dismiss that were addressed in the March 13 Order. 2 The
filing did not reference either motion to dismiss, and plaintiff never sought leave to file a
surreply in response to either motion to dismiss addressed in the March 13 Order.
2

Plaintiff filed his response to defendants Falk, Hoffman, and Stock’s motion to
dismiss on October 30, 2013, Docket No. 59, and his response to def endant Dowis’
motion to dismiss on November 29, 2013. Docket No. 67. No defendant filed a reply in
support of either motion.
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Moreover, any surreply would have been inappropriate, as neither defendants Falk,
Hoffman, and Stock nor defendant Dowis filed a reply in support of their respective
motions to dismiss.
Because plaintiff did not raise his arguments regarding tolling of the statute of
limitations and the continuing violation doctrine before the magistrate judge in
connection with defendants’ motions to dismiss, those arguments were waived.3
B. The May 27 Order
Plaintiff objects to the May 27 Order on the grounds that the Court incorrectly
found that plaintiff had not filed a timely objection to the second Recommendation.
Docket No. 111 at 1. Plaintiff directs the Court to his objection to the March 13 Order,
which was filed fewer than fourteen days after the second Recommendation. See id.
The Court has reviewed that objection and finds that it does not contain any proper
objection to the second Recommendation.
Plaintiff is entitled to de novo review of “any part of the magistrate judge’s
disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). An objection
is proper if it is specific enough to enable the Court “to focus attention on those
issues–factual and legal–that are at the heart of the parties’ dispute.” United States v.
2121 East 30th Street, 73 F.3d 1057, 1059 (10th Cir. 1996). Plaintif f’s objection to the
March 13 Order contains neither legal nor factual argument concerning defendant
Fauvel’s motion to dismiss. Regarding defendant Fauvel, the objection simply

3

Plaintiff also objects that defendants are not entitled to qualified immunity.
Docket No. 98 at 2, ¶ 2(C). Qualified immunity, however, was not a basis for the March
13 Order. Plaintiff’s objection is therefore irrelevant.
5

reasserts plaintiff’s allegations that defendant Fauvel prevented plaintiff from getting
immediate surgery. Docket No. 98 at 1-2, ¶ 2(A). 4 The magistrate judge found that
plaintiff did not allege that defendant Fauvel was aware of any kites that plaintiff sent to
the medical department and that, absent such an allegation, plaintiff did not state a
claim for deliberate indifference. Docket No. 96 at 9. Plaintiff does not contest or even
discuss this finding. See generally Docket No. 98. Accordingly, plaintiff has not raised
any objection to the second Recommendation that is specific enough “to focus attention
on those issues–factual and legal–that are at the heart of the parties’ dispute.” 2121
East 30th Street, 73 F.3d at 1059. Because plaintiff did not file a timely, proper
objection to the second Recommendation, the Court declines to reconsider the May 27
Order.
III. CONCLUSION
For the foregoing reasons, it is
ORDERED that plaintiff Alexis R. Ortiz’s Motion Objecting To Judge Philip
Brimmer’s Order For Motion To Dismiss Filed By Defendants [Docket No. 98] is
DENIED. It is further
ORDERED that plaintiff’s Motion Objecting [to] Judge Philip Brimmer’s Order
Accepting Magistrate Judge’s Recommendation On Docket No 96 [Docket No. 111] is
DENIED.
4

Plaintiff also objects on the grounds that defendants are not entitled to qualified
immunity. Docket No. 98 at 2, ¶ 2(C). This objection, however, cannot be construed as
a proper objection to the second Recommendation. The second Recommendation
found that plaintiff’s claims against defendant Fauvel should be dismissed pursuant to
Rule 12(b)(6) and did not address plaintiff’s qualified immunity argument. See Docket
No. 96 at 9.
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DATED November 4, 2014.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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