Claice v. Colo Doc. CSP.
ORDER denying in part and denying without prejudice in part 26 Motion to Reconsider Claim #3. 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. 13-cv-01074-MSK-KLM
JOHN A. CLAICE,
VANGELDER, CSP Lt., Unit L7, and
NERESON, CSP. CO., Unit CO,
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion to Reconsider Claim #3
[Docket No. 26; Filed August 29, 2013] (the “Motion”). In the Motion, Plaintiff seeks “to resubmit Claim # Three of this Civil Action, not only as a Retaliation Claim but also as a Due
Process Claim and a Deliberate Indifference to the Plaintiff’s Safety, Life and Liberty
Claim.” On June 20, 2013, Judge Boland dismissed Plaintiff’s third claim, which had been
described by Plaintiff as “Retaliation, Due Process.” Order [#16] at 3-4.
A motion for reconsideration “is an extreme remedy to be granted in rare
circumstances.” Brumark 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.
Although Plaintiff seeks reconsideration of his third claim, he does not indicate that
there has been an intervening change in the controlling law, that he has discovered new
evidence previously unavailable, or that the Court must correct its previous ruling to correct
clear error or prevent manifest injustice. See id. Accordingly, to the extent that Plaintiff
seeks to reinstate his third claim, the Motion is denied.
Plaintiff also appears to seek leave to add claims in connection with the underlying
events he originally identified as part of his third claim. If Plaintiff, who proceeds in this
matter pro se, is seeking leave to file an Amended Complaint, he must file a motion which
complies with the federal and local rules, namely, Fed. R. Civ. P. 15, and which includes
the proposed Amended Complaint as a document separate from the Motion. The Court will
not permit piecemeal adjudication of Plaintiff’s case; thus Plaintiff must include all claims
he seeks to bring and all defendants he intends to name in the proposed Amended
Complaint. Furthermore, Plaintiff must use the form complaint prescribed by this Court.
D.C.COLO.LCivR 8.2A. Accordingly, to the extent Plaintiff seeks leave to amend his
Amended Complaint, the Motion is denied without prejudice. Accordingly,
IT IS HEREBY ORDERED that the Motion [#26] is DENIED in part and DENIED
without prejudice in part.
IT IS FURTHER ORDERED that the Clerk of the Court is directed to mail a copy of
the pro se prisoner forms to Plaintiff at the address listed on the docket.
Dated: September 16, 2013
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