Pinson v. Berkebile

Filing 7

ORDER denying 6 Motion for Reconsideration by Judge Lewis T. Babcock on 1/9/14.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-03050-LTB
JEREMY PINSON,
Applicant,
v.
DAVID BERKEBILE,
Respondent.

ORDER DENYING MOTION FOR RECONSIDERATION

Applicant, Jeremy Pinson, filed pro se a Motion for Reconsideration seeking
reinstatement of this case. The Court must construe the Motion liberally because Mr.
Pinson 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). The Motion will be
denied for the reasons discussed below.
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). The Court will
consider Mr. Pinson’s Motion for Reconsideration pursuant to Rule 59(e) because the
motion was filed within twenty-eight days after the Court dismissed this action for failure

to cure a deficiency. See Van Skiver, 952 F.2d at 1243 (previous ten-day limit applied
to Rule 59(e) filings).
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).
After considering the Motion for Reconsideration, the Order of Dismissal, and the
entire file, the Court concludes that Mr. Pinson fails to demonstrate any reason why the
Court should alter or amend the December 23, 2013 Order of Dismissal and Judgment
in this action. Nothing Mr. Pinson asserts constitutes cause for reinstating this case.
Mr. Pinson makes a general statement that the ADX repeatedly loses or destroys
mail to and from this Court. He does not provide any documentation supporting his
statement that he did not receive the November 8, 2013 Order directing him either to
submit a 28 U.S.C. § 1915 Motion or to pay the $5 filing fee. He also does not assert
that he submitted a § 1915 motion to this Court when he submitted the Application.
Furthermore, Mr. Pinson did not submit a § 1915 motion with the Motion for
Reconsideration in order to cure the deficiency noted in the November 8, 2013 Order,
despite being aware of the deficiency. In the Motion for Reconsideration, Mr. Pinson
refers to the final order and to the fact that he could not comply with the directives
stated in the November 8 Order. Mr. Pinson either received the Order of Dismissal from
the Court or had access to the Order at the prison facility, read the Order, and knew that
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the Court had not received the motion or in the alternative the $5 filing fee. Even if Mr.
Pinson only had access to the Docket in this case, he has not inquired about the nature
of the deficiency and sought reinstatement to cure. Accordingly, it is
ORDERED that the Motion for Reconsideration, ECF No. 6, construed as filed
pursuant to Fed. R. Civ. P. 59(e) is DENIED.
DATED at Denver, Colorado, this 9th day of

January

, 2014.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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