Banks v. Colorado Dept. of Corrections et al

Filing 55

ORDER by Magistrate Judge Kristen L. Mix on 1/8/15. Motion to Reconsider Pursuant to Fed. R. Civ. P. Rule 60 [#47] is DENIED.(lgale, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02599-KLM
TORREY V. BANKS,
Plaintiff,
v.
COLORADO DEPARTMENT OF CORRECTIONS,
A. MEDINA, Warden at FCF,
R. WAGNER, Assistant Warden at FCF,
CAPTAIN KATZENMEYER,
STEPHANIE ENGLAR, FCF Mental Health Counselor,
JERRI SCOLLARD, Acting FCF Mental Health Supervisor,
C. SOARES, Assistant Warden at CSP,
CAPTAIN ARGUELLO, CSP Mail Room Supervisor,
SGT. CROSLEY,
C/O MALEBRANCHE, and
CAPTAIN QUATTLEBAUM,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion to Reconsider Pursuant to
Fed. R. Civ. P. Rule 60 [#47]1 (the “Motion”). Defendants have not filed a response to the
Motion and their deadline to do so has elapsed. The Court has reviewed the Motion, the
entire case file, and the applicable law, and is sufficiently advised in the premises. For the
reasons set forth below, the Motion [#47] is DENIED.

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“[#47]” is an example of the convention I use to identify the docket number assigned to
a specific paper by the Court’s case management and electronic case filing system (CM/ECF). I
use this convention throughout this Order.

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I. Background
Plaintiff, who proceeds in this matter pro se2, is an inmate at the Sterling
Correctional Facility in Sterling, Colorado. Third Am. Compl. [#22] at 2. He initiated this
action on September 20, 2013 by filing his initial Complaint [#1]. On October 9, 2013, the
Court ordered Plaintiff to amend his Complaint. See generally Order Directing Plaintiff to
Cure Deficiencies [#4]. As a result, on October 18, 2013, Plaintiff filed his First Amended
Complaint [#5]. On October 23, 2013, the Court entered an Order explaining various legal
deficiencies with Plaintiff’s First Amended Complaint and directed Plaintiff to file a Second
Amended Complaint. See generally Order Directing Plaintiff to File Second Amended
Complaint [#8]. On November 8, 2013, Plaintiff filed his Second Amended Complaint [#13].
On January 30, 2014, the Court entered an Order directing Plaintiff to file a Third Amended
Complaint. See generally Order Directing Plaintiff to File Third and Final Amended
Complaint [#19]. The Court explained specific deficiencies with the Second Amended
Complaint and allowed Plaintiff 30 days in which to file a Third Amended Complaint. See
generally id. In that Order, the Court informed Plaintiff that he
may not sue individuals whose only apparent involvement in the alleged
constitutional violations was to deny a grievance. Such allegations are not
sufficient to hold a Defendant liable under § 1983. “[A] denial of a grievance,
by itself without any connection to the violation of constitutional rights alleged
by plaintiff, does not establish personal participation under § 1983.” Gallagher
v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009).

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The Court must construe the filings of a pro se litigant liberally. See Haines v. Kerner, 404
U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citations omitted).
The Court, however, should not be the pro se litigant’s advocate, nor should the Court “supply
additional factual allegations to round out [the pro se litigant’s] complaint or construct a legal theory
on [his or her] behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing
Hall, 935 F.2d at 1110). In addition, pro se litigants must follow the same procedural rules that
govern other litigants. Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).

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Id. at 7. On March 5, 2014, Plaintiff filed his Third Amended Complaint [#22], the operative
complaint in this case. The Court reviewed the Third Amended Complaint and dismissed
certain claims pursuant to 28 U.S.C. § 1915A. See generally Order to Dismiss in Part and
to Draw Case to a District Judge and to a Magistrate Judge [#23] (the “May 7, 2014
Order”). In the Motion, Plaintiff seeks relief from the May 7, 2014 Order [#23]. See
generally Motion [#47]. Specifically, Plaintiff seeks reconsideration of the Court’s May 7,
2014 Order [#23] to the extent it dismissed Plaintiff’s claims against former defendant A.
Medina (“Medina”) and former defendant R. Wager (“Wager”). See generally id.
II. Analysis
The Court has broad discretion to reconsider its interlocutory orders prior to entry
of judgment. Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1251 (10th Cir. 2011) (“[D]istrict
courts generally remain free to reconsider their earlier interlocutory orders.”); Price v.
Philpot, 420 F.3d 1158, 1167 n.9 (10th Cir. 2005); see also Fed. R. Civ. P. 54(b) (“[A]ny
order or other decision, however designated, that adjudicates fewer than all the claims or
the rights and liabilities of fewer than all the parties does not end the action as to any of the
claims or parties and may be revised at any time before the entry of a judgment
adjudicating all the claims and all the parties’ rights and liabilities.”). The Court’s discretion
to revise its interlocutory orders is not limited by the standards for reviewing a
post-judgment motion filed pursuant to Fed. R. Civ. P. 59(e) or 60(b). See Raytheon
Constructors Inc. v. ASARCO, Inc., 368 F.3d 1214, 1217 (10th Cir. 2003) ( “[D]istrict court
was incorrect to treat [the plaintiff’s] motion for reconsideration [of an interlocutory order]
under Rule 60(b), which only applies to final orders or judgments.”). “Notwithstanding the
district court’s broad discretion to alter its interlocutory orders, the motion to reconsider ‘is
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not at the disposal of parties who want to rehash old arguments.’” Nat’l Bus. Brokers, Ltd.
v. Jim Williamson Prods., Inc., 115 F.Supp.2d 1250, 1256 (D. Colo. 2000) (quoting Young
v. Murphy, 161 F.R.D. 61, 62 (N.D. Ill. 1995)). “Rather, as a practical matter, to succeed
in a motion to reconsider, a party must set forth facts or law of a strongly convincing nature
to induce the court to reverse its prior decision.” Id. (internal quotation marks and citation
omitted). Even under this lower standard, “[a] motion to reconsider should be denied
unless it clearly demonstrates manifest error of law or fact or presents newly discovered
evidence.” Id. (quotation marks and citation omitted). Mindful of these principles, the Court
will not alter the May 7, 2014 Order unless 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) (explaining that “a motion for reconsideration is appropriate 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.”); see Lehman Brothers Holdings Inc. v. Universal Am. Mortgage
Co., LLC, No. 13-cv-00090-PAB-MJW, 2014 WL 5069409, at *1 (D. Colo. Oct. 9, 2014).
Motions for reconsideration are “inappropriate vehicles to reargue an issue previously
addressed by the court when the motion merely advances new arguments, or supporting
facts which were available at the time of the original [filing].” Servants of the Paraclete, 204
F.3d at 1012.
In the Motion, Plaintiff argues that former defendants Medina and Wager are
necessary

defendants.

Motion [#47] at 1-2.

He further argues that the Court

misunderstood his allegations against these former defendants when it entered the May
7, 2014 Order. Id. at 3.
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In his Third Amended Complaint, Plaintiff mentions these two former defendants in
one paragraph:
A [s]exual [h]arassment claim involving Ms. Englar was fabricated against
Plaintiff by Ms. Englar which led to a disciplinary report being written. A
partial investigation ensued, and Plaintiff was thereafter subjected to a
disciplinary hearing in which CDOC employers [sic] failed to comply with the
Due Procedural [sic] requirements. Plaintiff was unwarrantably convicted of
the code of Penal Discipline violation soon thereafter. Plaintiff appealed the
hearing board’s decision to the Warden [ ] (A. Medina) and Assistant Warden
[ ] (R. Wager) of Freemont Correctional Facility who unfortunately upheld the
disciplinary conviction without conducting a proper investigation into the
matter.
Third Am. Compl. [#22] at 9. This is the only mention of these two former defendants in the
Third Amended Complaint. As a result, the Court dismissed Plaintiff’s claims against these
individuals. In the May 7, 2014 Order, the Court explained the basis for dismissal as
follows:
Mr. Banks is suing A. Medina, warden at Fremont Correctional Facility, and
R. Wager, assistant warden at Fremont Correctional Facility, for denying the
appeal from his disciplinary conviction. Mr. Banks cannot maintain claims
against prison officials or administrators, such as Warden Medina and
Assistant Warden Wager, on the basis that they denied his grievance appeal.
The “denial of a grievance, by itself without any connection to the violation of
constitutional rights alleged by plaintiff, does not establish personal
participation under § 1983.” Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th
Cir. 2009); see also Whitington v. Ortiz, No. 07-1425, 307 F. App’x. 179, 193
(10th Cir. Jan. 13, 2009) (unpublished) (stating that “the denial of the
grievances alone is insufficient to establish personal participation in the
alleged constitutional violations.”) (internal quotation marks and citation
omitted); Stewart v. Beach, 701 F.3d 1322, 1328 (10th Cir. 2012) (denial of
a grievance appeal is insufficient for § 1983 liability).
May 7, 2014 Order [#23] at 3.
Plaintiff offers no argument that the Court has misapprehended the facts or the
controlling law. He also does not offer any new facts that were not known to him at the
time he filed his Third Amended Complaint. As noted above, “a motion for reconsideration
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. . . is not appropriate to revisit issues already addressed or advance arguments that could
have been raised in prior briefing.” Servants of the Paraclete, 204 F.3d at 1012. In the
Motion Plaintiff is attempting to revisit an issue that was already addressed by the Court
and has offered no basis for the Court to reach a different conclusion. Accordingly, the
Court finds no basis to grant the Motion and the Motion, therefore, must be denied. See,
e.g., Havens v. Clements, No. 13-cv-00452-MSK-MEH, 2014 WL 1089349, at *2 (D. Colo.
March 19, 2014); Cordova v. Dowling, No. 11-cv-01130-PAB-CBS, 2011 WL 5598223, at
*2-3 (D. Colo. Nov. 17, 2011); Torres v. O’Neal, No. 10-cv-00236-PAB, 2010 WL 2650841,
at *2 (D. Colo. June 30, 2010); Hubler v. Lander, No. 08-cv-02546-PAB-BNB, 2013 WL
908920, at *2 (D. Colo. March 9, 2010); Taylor v. Ortiz, No. 05-cv-00574-PAB-MJW, 2010
WL 882316, at *3 (D. Colo. March 5, 2010).
III. Conclusion
Accordingly, for the reasons stated above, the Motion [#47] is DENIED.
Dated: January 8, 2015

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