Meek v. Jordan, et al

Filing 26

ORDER denying 18 Motion to Set Aside 17 Clerk's Judgment ; finding as moot 19 Motion to Appoint Counsel ; finding as moot 21 Motion for Leave to Appeal in Forma Pauperis re 20 Notice of Appeal, by Judge Lewis T. Babcock on 6/25/2013.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-00659-LTB
TIMOTHY MEEK,
Plaintiff,
v.
SARGEANT MR. JORDAN,
CAPTIN [sic] MR. ROMERO,
SARGEANT MR. ROLANDO, and
CAPTIN [sic] MOORE, each Defendant is sued individually and in his official capacity.
At all times mentioned in this complaint each Defendant acted under the color of
state law,
Defendants.

ORDER DENYING MOTION TO RECONSIDER

Plaintiff, Timothy Meek, currently is incarcerated at the Denver County Jail. He
filed pro se on June 11, 2013, a motion titled “Motion and Order to Set Aside Default
Judgment” (ECF No. 18). The Court must construe the motion liberally because Mr.
Meek 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 motion to set aside default judgment will be treated as a motion to
reconsider, and 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 twentyeight days after the judgment is entered. See Fed. R. Civ. P. 59(e). 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 Van Skiver, 952 F.2d at 1243 (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)). Mr. Meek’s motion was filed twenty-nine
days after the Court’s Order of Dismissal and Judgment were entered on May 13, 2013.
Therefore, the motion will be construed as a motion to reconsider filed pursuant to Fed.
R. Civ. P. 60(b).
On May 13, the Court dismissed the instant action without prejudice pursuant to
Fed. R. Civ. P. 8 and 41(b) for Mr. Meek’s failure to file an amended Prisoner Complaint
that complied with the pleading requirements of Fed. R. Civ. P. 8 and the directives of
the order of April 17, 2013 (ECF No. 10). See ECF No. 16. The May 13 dismissal order
discusses in detail the reasons for the dismissal.
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). Upon consideration of the motion and the entire file, the Court finds that Mr.
Meek fails to demonstrate some reason why the Court should reconsider and vacate the
order to dismiss this action. The Fed. R. Civ. P. 60(b) motion does not alter the Court’s
conclusion that this action properly was dismissed. Therefore, the Fed. R. Civ. P. 60(b)
motion will be denied.
Accordingly, it is
ORDERED that the motion titled “Motion and Order to Set Aside Default
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Judgment” (ECF No. 18), that Plaintiff, Timothy Meek, filed pro se on June 11, 2013,
and which the Court has treated as a motion seeking relief from the judgment pursuant
to Rule 60(b) of the Federal Rules of Civil Procedure, is denied. It is
FURTHER ORDERED that the Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 21) filed on June 12, 2013, seeking
leave to proceed in forma pauperis on appeal, is denied as moot. The dismissal order
of May 13, 2013, already denied Mr. Meek leave to proceed in forma pauperis on
appeal. It is
FURTHER ORDERED that the motion for appointment of counsel (ECF No. 19)
Mr. Meek also filed on June 12, 2013, is denied as moot with leave to refile in the United
States Court of Appeals for the Tenth Circuit, where he is pursuing an appeal. It is
FURTHER ORDERED that any other pending motions are denied as moot.
DATED at Denver, Colorado, this 25th day of

June

, 2013.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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