Dunann v. Raemisch et al
ORDER denying 13 Motion for Reconsideration of Order by Judge Lewis T. Babcock on 1/24/14.(dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02295-LTB
JOHN HICKENLOOPER, Governor, Colorado,
STEVEN HAGER, Ex. Dir. C.D.O.C.,
JAMES FALK, Warden, S.C.F., C.D.O.C., and
BURNADETTE SCOTT, CO-3, AIC Coordinator, S.C.F., C.D.O.C.,
ORDER DENYING MOTION TO RECONSIDER
Plaintiff, Dennis Dunann, 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 January 21, 2014, a motion titled “Motion for
Reconsideration of Order” (ECF No. 13) asking the Court to reconsider its Order of
Dismissal and Judgment entered on January 2, 2014. The Court must construe the
motion liberally because Mr. Dunann 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 will be treated as a motion to alter
or amend judgment pursuant to Fed. R. Civ. P. 59(e), and 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 twentyeight days after the judgment is entered. See Fed. R. Civ. P. 59(e). Mr. Dunann’s
motion was filed nineteen days after the Court’s January 2 dismissal order and
judgment. Therefore, The Court will consider Mr. Dunann’s January 21 motion pursuant
to Rule 59(e) because the motion was filed within twenty-eight days after the Judgment
was entered in this action. See Van Skiver, 952 F.2d at 1243 (stating that motion to
reconsider filed within ten-day limit for filing a Rule 59(e) motion under prior version of
that rule should be construed as a Rule 59(e) motion).
A Rule 59(e) motion may be granted “to correct manifest errors of law or to
present newly discovered evidence.” Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th
Cir. 1997) (internal quotation marks omitted). Relief under Rule 59(e) also is
appropriate when “the court has misapprehended the facts, a party’s position, or the
controlling law.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.
2000). However, a Rule 59(e) motion is not a new opportunity to revisit issues already
addressed or to advance arguments that could have been raised previously. See id.
On January 2, the Court dismissed the instant action as legally frivolous pursuant
to 28 U.S.C. § 1915(e)(2)(B). The January 2 dismissal order discusses in detail the
reasons for the dismissal. See ECF No. 11.
In the motion to reconsider, Mr. Dunann contends the claim in the amended
Prisoner Complaint that his cell space is too small is not frivolous. In the amended
complaint, he alleges he resides in 81.60 square feet of cell space, with 48.80 square
feet of living space once he subtracts the space filled by his bed, lockers, desk, and
stool. See ECF No. 10 at 11. He contends the net living space of 48.80 square feet is
in violation of Ramos v. Lamm, 639 F.3d 559, 568 (10th Cir. 1980), which upheld the
finding in Battle v. Anderson, 564 F.2d 388, 395, 397 (10th Cir. 1977), that “60 square
feet of living space was the minimum amount of square footage which the Eighth and
Fourteenth Amendments require that a state provide an inmate.” Ramos, 639 F.3d at
Mr. Dunann fails to note Ramos also provides “[a] necessary corollary to this
ruling is that a state must provide within such living space reasonably adequate
ventilation, sanitation, bedding” and so forth. Id. (emphasis added). Mr. Dunann enjoys
81.60 square feet of living space, which under the Ramos-Battle standard is in excess
of the required minimum square footage. Ramos does not, as Mr. Dunann apparently
believes, require a living space large enough to accommodate Plaintiff’s bed, lockers,
desk, stool, or other amenities and an additional 60 square feet of open living space.
Moreover, as discussed in the January 2 dismissal order, Mr. Dunann fails to allege an
injury or the personal participation of each named Defendant.
After review of the motion and the entire file, the Court finds that Mr. Dunann fails
to demonstrate some reason why the Court should reconsider and vacate the order to
dismiss this action. The Fed. R. Civ. P. 59(e) motion does not alter the Court’s
conclusion that this action properly was dismissed. Therefore, the Fed. R. Civ. P. 59(e)
motion will be denied.
Accordingly, it is
ORDERED that the motion titled “Motion for Reconsideration of Order” (ECF No.
13) that Plaintiff, Dennis Dunann, filed pro se on January 21, 2014, and which the Court
has treated as a motion to alter or amend judgment pursuant to Fed. R. Civ. P. 59(e), is
DATED at Denver, Colorado, this 24th day of
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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