Graff v. Bonner
ORDER denying 26 Motion for Relief From Judgment by Judge Lewis T. Babcock on 10/25/13.(dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-01708-LTB
RONALD DEAN GRAFF,
BOBBY BONNER, Warden, KCCC/CCA,
ORDER DENYING MOTION TO RECONSIDER
Plaintiff, Ronald Dean Graff, is a prisoner in the custody of the Colorado
Department of Corrections who currently is incarcerated at the correctional facility in
Sterling, Colorado. He filed pro se on September 24, 2013, a motion titled “Motion for
Relief From Judgment” (ECF No. 26) pursuant to Rule 60(b) of the Federal Rules of
Civil Procedure. The Court must construe the motion liberally because Mr. Graff 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 for relief from judgment 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). A motion to
reconsider filed mor e 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. Graff’s motion was filed thirty-two days
after the Court’s Order of Dismissal and Judgment were entered on August 23, 2013.
Therefore, the motion will be construed as a motion to reconsider filed pursuant to Fed.
R. Civ. P. 60(b).
On August 23, the Court dismissed the instant action without prejudice pursuant
to Fed. R. Civ. P. 41(b) for Mr. Graff’s failure to cure within the time allowed all the
deficiencies designated in the order to cure of June 28, 2013. The August 23 dismissal
order discusses in detail the reasons for the dismissal. See ECF No. 23.
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.
Graff 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 for Relief From Judgment” (ECF No. 26)
that Plaintiff, Ronald Dean Graff, filed pro se on September 24, 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.
DATED at Denver, Colorado, this 25th
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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