Rohn v. Nestor et al

Filing 16

ORDER denying 15 Motion for Leave to Reopen and or File an Amended Complaint by Judge Lewis T. Babcock on 2/12/14.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-02117-LTB
RONALD ROHN,
Plaintiff,
v.
NESTOR, et al.,
TOM NESTOR, Sheriff,
CLINT TWEDEN, Captain,
CURTIS WYNESKY, Deputy Sheriff,
CARMELA NESTOR, Deputy Sheriff, and
THERESA DIXON, Deputy Sheriff,
Defendants.

ORDER DENYING MOTION

Plaintiff, Ronald Rohn, filed on February 7, 2014, a pro se Motion for Leave to
Reopen and or File an Amended Complaint (ECF No. 15). Mr. Rohn asks the Court to
reopen the instant action which was dismissed on December 4, 2013, and to allow him
adequate time to file an amended complaint. The Court must construe the motion
liberally because Mr. Rohn 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 stated below, the motion will be denied.
A litigant subject to an adverse judgment who seeks reconsideration by the
district court 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). However, 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). Mr. Rohn’s motion will be construed as
a motion pursuant to Fed. R. Civ. P. 60(b) because it was filed more than twenty-eight
days after the Judgment was entered. See Van Skiver, 952 F.2d at 1243 (stating that
motion to reconsider filed after ten-day limit for filing a Rule 59(e) motion under prior
version of that rule should be construed as a Rule 60(b) motion). 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).
Mr. Rohn initiated this action by filing a Complaint Pursuant to 42 U.S.C. 1983
(ECF No. 1). On September 9, 2013, Mr. Rohn filed an amended complaint using the
court-approved Prisoner Complaint form. (See ECF No. 5.) On September 17, 2013,
Mr. Rohn was ordered to file a second amended complaint that clarified who he is suing
and provided specific factual allegations in support of the claims asserted. On October
9, 2013, Mr. Rohn was granted an extension of time until November 18, 2013, to file a
second amended complaint. On October 18, 2013, Mr. Rohn filed a second motion for
extension of time because he had been transferred to the Bent County Correctional
Facility and needed copies of documents he had filed. The second motion for extension
of time was denied the same day it was filed because Mr. Rohn failed to demonstrate
an extension beyond November 18, 2013, was necessary or justified at that time. On
December 4, 2013, the Court entered an order dismissing the action without prejudice
because Mr. Rohn had not filed a second amended complaint within the time allowed.
Mr. Rohn alleges in the motion to reconsider that he could not file a second
amended complaint prior to November 18, 2013, because he was transferred to the
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Bent County Correctional Facility in October 2013 and prison officials lost his legal
papers. He further alleges that he had to wait until he had sufficient funds to obtain
copies of documents filed in this action and that he is “uneducated in the law and is
depending on inmate legal assistance to help him in this proceeding.” (ECF No. 15 at
1.)
After review of the motion to reconsider and the entire file, the Court finds that
Mr. Rohn fails to demonstrate the existence of any extraordinary circumstances that
would justify a decision to reconsider and vacate the order dismissing this action. Even
if the Court assumes Mr. Rohn’s allegations would have justified an additional extension
of time beyond November 18, 2013, he fails to explain why he did not seek an additional
extension of time until two months after the case was dismissed. Therefore, the motion
to reopen will be denied. The action was dismissed without prejudice, however, and Mr.
Rohn may file a new action if he wishes to pursue his claims. Accordingly, it is
ORDERED that the “Motion for Leave to Reopen and or File an Amended
Complaint” (ECF No. 15), which the Court has construed as a motion to reconsider, is
DENIED.
DATED at Denver, Colorado, this 12th day of

February

, 2014.

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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