Banks v. Colorado Dept. of Corrections et al

Filing 84

ORDER by Magistrate Judge Kristen L. Mix on 7/22/15. Motion to Alter or Amend the Judgement [sic]/Reconsideration/Reargument [sic] Rule (59) Fed. [C]iv. R # 69 and Plaintiff's Motion for Relief from Judgment Rule 60 Fed.R.civ.P. [sic]# 83 are DENIED. IT IS FURTHER ORDERED that all pending motions # 74 , # 80 # 81 are 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.
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 Alter or Amend the
Judgement [sic]/Reconsideration/Reargument [sic] Rule (59) Fed. [C]iv. R [#69]1 (the
“First Motion”) and Plaintiff’s Motion for Relief from Judgment Rule 60 Fed.R.civ.P. [sic]
[#83] (the “Second Motion” and collectively with the First Motion, the “Motions”).
Defendants filed a Response [#75] to the First Motion. Plaintiff did not file a reply and his
deadline to do so has elapsed.2 Defendants have not yet filed a response to the Second

1

“[#69]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.
2

See D.C.COLO.LCivR 7.1(d).

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Motion, but it is more efficient to address the Motions together, therefore, the Court rules
on it pursuant to D.C.COLO.LCivR 7.1(d) (“Nothing in this rule precludes a judicial officer
from ruling on a motion at any time after it is filed.”). The Court has reviewed the Motions,
the Response, the entire case file, and the applicable law, and is sufficiently advised in the
premises. For the reasons set forth below, the Motions [##69, 83] are DENIED.
I. Jurisdiction
The Court has jurisdiction pursuant to 28 U.S.C. § 1331.
II. Background
A.

Procedural Background
On March 4, 2015, the Court entered a lengthy Order granting Defendants’ motion

to dismiss. See generally Order [#60]. In that Order the Court included a detailed
recitation of the background of this case. As a result, the Court does not restate the factual
background and instead incorporates the March 4, 2015 Order by reference. Below the
Court briefly summarizes the procedural history of this case as it is relevant to the Motions.
In short, the Court gave Plaintiff many opportunities to amend his claims, informed
Plaintiff what steps he needed to take to amend his claims, provided clarification regarding
the law governing his claims, and eventually, granted Defendants’ motion to dismiss
pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Among other things, in its March 4, 2015
Order, the Court concluded
that despite being informed of how to seek leave to amend his Third
Amended Complaint and despite being given multiple opportunities to amend
his claims, Plaintiff did not seek leave to further amend his claims in his
Response. The Court further finds that even if Plaintiff did intend the
Response as a motion to amend, such motion is improper. Therefore, the
Court treats the Response as a Response to Defendants’ Motion only.
2

Order [#60] at 7. As part of its more detailed analysis of Plaintiff’s response to the motion
to dismiss, the Court explained:
The Court agrees with Defendants that to the extent the Response can be
read as a motion seeking leave to amend his Third Amended Complaint,
such request should be denied. First, the rules of this Court specifically
explain that “[a] motion shall not be included in a response or reply to the
original motion.” D.C.COLO.LCivR 7.1(d). In addition, Fed. R. Civ. P. 7(b)
makes clear that “[a] request for a court order must be made by motion.”
Fed. R. Civ. P. 7(b). A pro se litigant must follow the same procedural rules
that govern other litigants, including the Local Rules of this Court and the
Federal Rules of Civil Procedure. Nielson v. Price, 17 F.3d 1276, 1277 (10th
Cir. 1994); Pallottino v. City of Rio Rancho, 425 F.App’x 710, 713 (10th Cir.
2011) (unpublished decision) (“[T]he pro se status of [Plaintiffs] does not
relieve them of their obligations to comply with procedural rules . . . .”); see
also Indiana v. Edwards, 554 U.S. 164, 185 (2008) (“A pro se defendant may
not . . . fail to comply with relevant rules of procedural . . . law.” (quotation
marks and citation omitted)); Kennington v. U.S. Dep’t of the Treasury, 490
F.App’x 939, 942 n.1 (10th Cir. 2012) (table decision) (disregarding letter
submission by pro se party that did not follow procedural rules). Second, the
Court has given Plaintiff ample opportunities to amend his claims and as
recently as August 21, 2014, it specifically informed him of the procedures he
must follow in order to seek leave to amend. See Minute Order [#40] at 1.
In response to that Minute Order Plaintiff did not seek leave to amend,
instead he sought reconsideration of a prior Order entered in this case. See
generally Motion to Reconsider Pursuant to Fed. R. Civ. P. Rule 60 [#47].
Accordingly, to the extent Plaintiff’s inclusion of additional factual allegations
in the Response could be construed as a request to further amend the Third
Amended Complaint, such request is improper and subject to denial.
Further, the Court notes that the Response does not explicitly request
amendment of the operative pleading, instead, it simply includes additional
factual allegations. Therefore, the Court does not treat the Response as a
motion. The Court addresses the inclusion of additional factual allegations
in the Response in its analysis below.
Order [#60] at 10-11. When analyzing the motion to dismiss, the Court also explained that
it could not consider the new factual allegations included in Plaintiff’s response to the
motion to dismiss.
In his 62-page Response, Plaintiff offers a plethora of new factual allegations.
See generally Response [##51, 52]. At the end of the two documents that
constitute the Response, Plaintiff swears that the facts contained in the
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Response are true and correct. See Response [#51] at 26; Response [#52]
at 20. In addition, Plaintiff attaches an affidavit signed by him, an affidavit
signed by another inmate, a form titled Department of Correction[s]
Administrative Segregation Privilege Level Review, a form titled Colorado
Department of Corrections Offender Grievance Form, a handwritten
addendum to the Response, a form titled Request for Legal Assistance, a
letter dated April 11, 2013 that includes one attachment, and a letter dated
July 17, 2013. Response [#52] at 22-35.
Plaintiff appears to “miscontrue[ ] the court’s function on a Rule 12(b)(6)
motion, which ‘is not to weigh potential evidence that the parties might
present at trial, but to assess whether the plaintiff’s complaint alone is legally
sufficient to state a claim for which relief may be granted.’” Stinson ex rel.
United States v. Maynard, 341 F.App’x 413, 417 (10th Cir. 2009)
(unpublished decision) (quoting Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir.
2006) (emphasis in Stinson)). In Stinson, the Tenth Circuit affirmed the
district court’s dismissal with prejudice of the pro se plaintiff’s claims pursuant
to Fed. R. Civ. P. 12(b)(6). In doing so, the Tenth Circuit noted that absent
certain exceptions, “when considering a Rule 12(b)(6) motion, “a federal
court may only consider facts alleged within the complaint.’” Id. (quoting Cnty.
of Santa Fe v. Pub. Serv. Co. of N.M., 311 F.3d 1031, 1035 (10th Cir. 2002)).
As the Tenth Circuit indicates, there are certain exceptions to the general rule
that the Court cannot consider any documents outside of the complaint when
analyzing a Rule 12 motion to dismiss. Accordingly, the Court next considers
whether any of the documents submitted by Plaintiff may be considered by
the Court.
Order [#60] at 15-16. The Court then considered whether the documents Plaintiff attached
to his response could be considered by the Court and concluded that they could not. Id.
at 16-18.
Regarding Plaintiff’s allegations, the Court divided them into four distinct claims, id.
at 7-10, and then analyzed each claim based on the legal theory underlying the claim. The
Court found that Defendants were entitled to Eleventh Amendment immunity with regard
to the official capacity claims for monetary relief, id. at 24; that Plaintiff’s claims for
compensatory damages were barred by the PLRA, id. at 25-26; and that Plaintiff failed to
state a claim against any Defendant in his or her individual capacity. Id. at. 26-50. As a
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result, the Court granted the motion to dismiss and Final Judgment [#61] was entered.
B.

The Motions
In the Motions, Plaintiff seeks relief from the Final Judgment [#61] entered on March

4, 2015.
In the First Motion, Plaintiff argues that his response to the motion to dismiss should
have been treated as a motion to amend. First Motion [#69] at 2-3. He further argues that
the undersigned should have construed his allegations as asserting a claim under the
Americans with Disabilities Act (“ADA”). Id. at 3. In short, he relies on the new factual
allegations included in his response to the motion to dismiss to argue that he properly
brought an ADA claim. Id.3 Plaintiff also argues that the Court should have considered the
documents he attached to his response to the motion to dismiss or appointed counsel to
represent him in this case. Id. at 3-4. Plaintiff further maintains that the undersigned erred
in her understanding of his first claim for relief. Id. at 5. This argument is convoluted and
difficult to understand but Plaintiff appears to be arguing that this claim is based on a
violation of certain CDOC policies. Id. at 5-7. This argument, again, is based on factual
allegations not contained in the operative complaint. Id. Plaintiff also purports to challenge
the Court’s determination regarding qualified immunity. Id. at 7-8. However, he does not
identify which claim or Defendant his arguments relate to and the Court cannot determine
3

Plaintiff states that his Third Amended Complaint and his response to the motion to
dismiss “clearly allege[ ] [that] he was removed from mental health treatment due to discrimination
(arbitrary) treatment from Englar. Judge Mix should’ve construed this as an ADA/RA claim.” First
Motion [#69] at 3. However, the only mention of the ADA in the Third Amended Complaint is when
Plaintiff “assert[s] jurisdiction pursuant to” specific statutes and includes “42 U.S.C. §[§] 1213112203 b” in the list of statutes under which he asserts that the Court has jurisdiction. However, as
the Court’s March 23, 2015 Order and many other Orders entered in this case make clear, Rule 8
requires much more than a mere mention of a statute in a jurisdictional statement. See Order [#60]
at 2-5.

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which part of its analysis he wishes to challenge. Similarly, Plaintiff includes a section titled
“Conspiracy Claim/Joint Action Test” that relates to a CDOC policy that was not mentioned
in the operative complaint. Id. at 8. This section does not appear to relate to any part of
the Court’s March 4, 2015 Order. Plaintiff also includes a section titled “PLRA” that seems
to agree with the Court’s analysis of the PLRA. Id. at 8-9. Later, Plaintiff includes a
discussion of the panic attacks mentioned in his operative complaint that were addressed
by the Court in its analysis of the PLRA. Id. at 10; Order [#60] at 25-26. However, Plaintiff
confuses the analysis of the PLRA with claims for deliberate indifference to medical needs.
First Motion [#69] at 10-11. Plaintiff’s section titled “Malebranche” appears to challenge the
Court’s conclusion that he failed to state a First Amendment claim against this Defendant.
Order [#60] at 34. Plaintiff seems to believe that his claim should have survived the motion
to dismiss because he has “favorable witness accounts” that were filed in another lawsuit
that he was unable to obtain and file in this lawsuit. Id. at 9. With regard to the Court’s
conclusion that his denial of access to the Courts claim failed to state a claim, Order [#60]
at 35-37, Plaintiff argues that his failure to name any defendant associated with these
allegations should not have led to dismissal of this claims. First Motion [#69] at 11. Plaintiff
further argues that there is a policy in place that explicitly sanctioned the conduct of the
unnamed mail room employees who allegedly infringed on his rights. Id. at 12-13. Plaintiff
next argues that the Court should not have denied a previous motion for reconsideration.
Id. at 14; see also Order [#55] (denying Plaintiff’s Motion to Reconsider Pursuant to Fed.
R .Civ. P. Rule 60 [#47]).

Finally, Plaintiff includes a section titled “11th

Immunity/PLRA/Qualified Immunity.” First Motion [#69] at 15-17. This section is difficult
to understand. Plaintiff mentions the Spending Clause and cites to the ADA. Id. at 16.
6

This section does not appear to relate to any issue discussed in the March 4, 2015 Order,
which formed the basis for the entry of judgment.
In the Response, Defendants argue that Plaintiff has failed to meet the high standard
for reconsideration under Rule 60. Response [#75] at 1-2. They argue that he “has not
pointed to any intervening change in the controlling law, any new evidence, or a need to
correct clear error.” Id. at 2. Instead, they argue “Plaintiff has used his Motion for
Reconsideration as another opportunity to repeat much of what he has already alleged and
recited several times in this case.” Id. Defendants further argue that to the extent Plaintiff
attempts to assert new issues in the Motion, “Plaintiff is barred from raising a new issue for
the first time in a motion for reconsideration.” Id. at 3.
In the Second Motion, Plaintiff purports to seek relief under Fed. R. Civ. P. 60.
Second Motion [#83] at 1. Plaintiff asks the Court to toll the statute of limitations. Id. He
also states that he is no longer incarcerated and argues that this fact somehow requires
that the Court relieve him from the entry of judgment. Plaintiff also cites to cases that he
seems to believe require the Court to conclude that because he was recently released from
prison the PLRA’s physical injury requirement does not apply to him. Id. at 2. However,
it is unclear if Plaintiff actually intends to make such an argument. Plaintiff maintains that
this “new evidence” (presumably his release from prison) “would probably result in a
different outcome.” Id. at 3.
III. Standard of Review
As Defendants note,
Technically, “[a] motion for reconsideration [is] not recognized by the Federal
Rules of Civil Procedure.” Computerized Thermal Imaging, Inc. v. Bloomberg,
L.P., 312 F.3d 1292, 1296 n. 3 (10th Cir. 2002). This court construes such
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a motion as filed pursuant to Rule 59(e) or 60(b), depending on the asserted
justification for, and timing of, the motion. Id.
Jaramillo v. Gov’t Emps.Ins. Co., 573 F.App’x 733, 738 n.4 (10th Cir. 2014) (unpublished
Order and Judgment). A litigant who is 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). If the
motion is filed timely under both rules, how the court construes it depends on the reasons
expressed by the movant.

Commonwealth Prop. Advocates, LLC v. Mortg. Elec.

Registration Sys., Inc., 680 F.3d 1194, 1200 (10th Cir. 2011) (citing Jennings v. Rivers, 394
F.3d 850, 855 (10th Cir.2005)). A motion under Rule 59(e) is the appropriate vehicle “to
correct manifest errors of law or to present newly discovered evidence.” Phelps v.
Hamilton, 122 F.3d 1309, 1324 (10th Cir.1997). A Rule 60(b) motion is appropriate for,
among other things, “mistake, inadvertence, surprise, or excusable neglect” and “newly
discovered evidence that, with reasonable diligence, could not have been discovered in
time to move for a new trial.” Fed. R. Civ. P. 60(b)(1), (2).
Notably, “the filing of concurrent Rule 59(e) and 60(b) motions circumvents the intent
of the rules.” Handy v. City of Sheridan, No. 12-cv-01015-WYD-KMT, 2015 WL 428380,
at *3 (D. Colo. Jan. 30, 2015). “[T]he rules allow a litigant subject to an adverse judgment
to 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). These two
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rules are distinct; they serve different purposes and produce different consequences.” Van
Skiver, 952 F.2d at 1243. Nonetheless, in an abundance of caution, the Court will address
both Motions.
The First Motion was filed within the deadline set by Rule 59(e) and in it Plaintiff
argues that the Court incorrectly interpreted the pleadings and applied the law and attempts
to assert new allegations. The Second Motion was filed more than 28 days after entry of
the Final Judgment and in it Plaintiff argues that there is “new evidence” that justifies
relieving Plaintiff from the Final Judgment entered in this case because Plaintiff is no longer
incarcerated.

Under the authority above, therefore, the First Motion [#69] is more

appropriately construed as a Rule 59(e) motion to alter or amend the judgment and the
Second Motion [#83] must be construed as filed under Rule 60(b) because it was filed more
than “28 days after the entry of the judgment.” Fed. R. Civ. P. 59(e).
A.

Fed. R. Civ. P. 59
In the Tenth Circuit, it is well established that grounds for a motion to reconsider

pursuant to Rule 59(e) include: “(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 the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citing
Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 948 (10th Cir. 1995)). Thus, a motion
to reconsider is “appropriate where the court has misapprehended the facts, a party’s
position, or the controlling law.” Id. A motion for reconsideration is not to be used as a
vehicle for “revisit[ing] issues already addressed or advanc[ing] arguments that could have
been raised in prior briefing.” Id. (citing Van Skiver v. United States, 952 F.2d 1241, 1243
(10th Cir. 1991)). Furthermore, a motion for reconsideration “is an extreme remedy to be
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granted in rare circumstances.” Brumark, 57 F.3d at 944.
In the First Motion Plaintiff does not argue that there has been an intervening
change in the law. With regard to the second basis for reconsideration, he does not argue
that there is new evidence that was previously unavailable. Instead, he attacks the Court’s
treatment of the evidence he attempted to present by attaching documents to his response
to the motion to dismiss. This evidence was discussed in the Court’s March 4, 2015 Order
and cannot be considered “new” evidence for purposes of Rule 59(e). Accordingly, it does
not meet the requirements of the second basis for reconsideration pursuant to Rule 59(e).
See Brooks v. Colo. Dep’t of Corrections, No. 13-cv-02894-CBS, 2015 WL 3619221, at *2
(D. Colo. June 10, 2015). With regard to the third basis for granting a Rule 59(e) motion,
Plaintiff does not convincingly argue that there has been clear error or manifest injustice.
Instead, he “simply contends that he, in fact, did state [ ] claim[s] against Defendant[s].”
Sayed v. Broman, No. 13-cv-02961-CMA-MJW, 2015 WL 2345638, at *1 (D. Colo. May 14,
2015) (citing Paraclete, 204 F.3d at 1012). However, “[a] disagreement with the court and
a mere request that a court rethink a decision it has already made are improper bases for
relief under Rule 59(e).” Id. As the Court held when it considered Plaintiff’s first motion
for reconsideration in this case, “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.” Order [#55] at 6. Further, to the extent Plaintiff seeks reconsideration of the
Court’s previous ruling on his first motion for reconsideration, he cannot use Rule 59(e) to
continually ask the Court to revisit its rulings. See, e.g., Paraclete, 204 F.3d at 1012
(motion to reconsider is not a proper vehicle through which to “revisit issues already
addressed or advance arguments that could have been raised in prior briefing”); Lacefield
10

v. Big Planet, No. 2:06–CV–844, 2008 WL 2661127, at *1 (D. Utah July 3, 2008)
(unpublished) (“When a motion for reconsideration raises only a party’s disagreement with
a decision of the Court, that dispute should be dealt with in the normal appellate process.”).
As a result, the First Motion [#69] is DENIED.
B.

Fed. R. Civ. P. 60
As noted above, to the extent that Plaintiff asks the Court to reconsider its Final

Judgment entered in this case based on what he considers newly discovered evidence,
Second Motion [#83] at 2, the Court treats the Second Motion as being filed pursuant to
Fed. R. Civ. P. 60(b) because it was filed more than 28 days after entry of judgment. “Rule
60(b) relief is extraordinary and may be granted only in exceptional circumstances.” Butler
v. Kempthorne, 532 F.3d 1108, 1110 (10th Cir. 2008) (quoting Beugler v. Burlington N. &
Santa Fe Ry. Co., 490 F.3d 1224, 1229 (10th Cir. 2007)). A litigant shows exceptional
circumstances by satisfying one or more of the grounds for relief enumerated in Rule 60(b).
Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991). Pursuant to Rule 60(b),
in the following circumstances, the Court may grant relief from a final judgment or order:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b);
(3) fraud . . ., misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on
an earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b). 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

11

controlling law; (2) new evidence previously unavailable; and (3) the need to correct clear
error or prevent manifest injustice.” Paraclete, 204 F.3d at 1012 (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.
In the Second Motion Plaintiff argues that because he has been released from prison
the Court should grant him relief from the Final Judgment under Rule 60(b)(4) (“the
judgment is void” and 60(b)(5) (“the judgment has been satisfied released or discharged
. . . .”). Second Motion [#83] at 2-3. Plaintiff offers no argument that either of these
subsections applies in this case and, reading the Second Motion liberally, the Court cannot
find any support for relief under these subsections. However, assuming that Plaintiff
intended to rely on Rule 60(b)(6), the hardships Plaintiff faced because he was incarcerated
and his subsequent release from prison do not provide a basis for relief under Rule 60(b).
In essence, Plaintiff would like relief from the Final Judgment so that he can relitigate the
entire case simply because he is no longer incarcerated. Plaintiff provides no legal support
for this request. Further, it is not unusual for a litigant to who is released from prison to
have more resources after he his release. This does not constitute the “extraordinary
circumstances” required for relief under Rule 60(b). Gonzalez v. Crosby, 545 U.S. 524,
535 (2005); Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., 909 F.2d 1437, 1440
(10th Cir. 1990) (“Relief under Rule 60(b) is extraordinary and may only be granted in
exceptional circumstances.”). As a result, the Second Motion [#83] is DENIED.

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V. Conclusion
Accordingly, based on the foregoing and the entire record in this case,
IT IS HEREBY ORDERED that the First Motion [#69] and the Second Motion [#83]
are DENIED.
Because this case is closed, the Court denied Plaintiff’s Motions for reconsideration,
and an appeal is currently pending,
IT IS FURTHER ORDERED that all pending motions [##74, 80, 81] are DENIED.
Dated: July 22, 2015

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