Toney v. Berkebile et al

Filing 30

ORDER denying 29 Motion to Alter or Amend the Judgment by Judge Lewis T. Babcock on 8/12/14.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-00196-LTB
JOE M. TONEY, JR.,
Plaintiff,
v.
WARDEN BERKEBILE,
A. W. MS. HALL,
A. W. MR. JOHNSON,
MS. RANGEL,
MR. GRIGGS,
MS. SUDLOW,
MS. H. REDDEN,
MR. CEDENO,
SIS LT. M. L. BIER,
MR. HEETT,
MR. C. COX,
MR. R. GOMEZ, and
MR. PERKINS,
Defendants.

ORDER DENYING MOTION TO RECONSIDER

The matter before the Court is the motion titled “Motion to Alter or Amend the
Judgment” (ECF No. 29) that Plaintiff, Joe M. Toney, Jr., filed pro se on July 17, 2014.
Mr. Toney is a prisoner in the custody of the Federal Bureau of Prisons at the United
States Penitentiary, Administrative Maximum, in Florence, Colorado. He seeks
reconsideration of the Order of Dismissal entered on July 10, 2014, which dismissed the
amended Prisoner Complaint and the action without prejudice for Mr. Toney’s failure to
file a second amended Prisoner Complaint as directed within the time allowed.

The Court must construe the motion to reconsider liberally because Plaintiff is a
pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991). The Court will deny Plaintiff’s request for
reconsideration based on the reasons stated below.
A litigant subject to an adverse judgment 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). The Court
will consider Mr. Toney’s motion pursuant to Rule 59(e) because it was filed within
twenty-eight days after the dismissal was entered in this action on July 10, 2014. See
Van Skiver, 952 F.2d at 1243 (stating that a motion to reconsider should be construed
as filed pursuant to Rule 59(e) when it is filed within the ten-day limit (limit effective prior
to December 1, 2009) set forth under Rule 59(e)).
The three major grounds that justify reconsideration are: (1) an intervening
change in controlling law; (2) the availability of new evidence; and (3) the need to
correct clear error or prevent manifest injustice. See Servants of the Paraclete v. Does,
204 F.3d 1005, 1012 (10th Cir. 2000). A motion to reconsider is appropriate where the
court has misapprehended the facts, a party’s position, or the controlling law. Id. (citing
Van Skiver, 952 F.2d at 1243).
On May 13, 2014, Magistrate Judge Boyd N. Boland entered an order (ECF No.
20) directing Mr. Toney to file a second amended Prisoner Complaint within thirty days.

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The order warned Mr. Toney that if he failed within the time allowed to file a second
amended Prisoner Complaint as directed, certain claims against certain defendants, or
the entire amended Prisoner Complaint and action, may be dismissed without further
notice. ECF No. 20 at 6. On May 23, 2014, Mr. Toney appealed from the May 13
order. ECF No. 23.
On May 28, 2014, Magistrate Judge Boland entered a minute order (ECF No. 22)
granting Mr. Toney’s motion for extension of time filed on May 27, 2014 (ECF No. 21),
and allowing him an additional thirty days in which to file the second amended Prisoner
Complaint as directed in the May 13 order. The minute order reminded Mr. Toney that
failure to file an amended Prisoner Complaint as directed in the May 13 order within the
time allowed may result in the dismissal of the instant action. On June 4, 2014, the
United States Court of Appeals for the Tenth Circuit dismissed Mr. Toney’s appeal for
lack of jurisdiction because Mr. Toney had appealed from a nonfinal order, i.e., the May
13 order for a second amended Prisoner Complaint. ECF No. 25. On July 10, 2014,
the Court dismissed the amended Prisoner Complaint and the action without prejudice
for failure to comply with the pleading requirements of Rule 8 of the Federal Rules of
Civil Procedure and for Mr. Toney’s failure to file within the time allowed a second
amended Prisoner Complaint that complied with the May 13 order. The judgment (ECF
No. 27) was entered on the same day. Four days after the dismissal, on July 14, 2014,
Mr. Toney tendered a second amended Prisoner Complaint (ECF No. 28).
Mr. Toney apparently misunderstands that he had thirty days from the date of the
May 28 minute order, or until June 27, 2014, in which to file the second amended
Prisoner Complaint as directed. Even under the prisoner mailbox rule of Houston v.

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Lack, 487 U.S. 266, 276 (1998), Mr. Toney’s signing--and apparent mailing--of the
second amended Prisoner Complaint on July 9, 2014, still renders it untimely because it
was filed after the June 27 deadline.
The Court, therefore, will deny Mr. Toney’s motion to reconsider because he fails
to demonstrate that the Court misapprehended the facts, his position, or the controlling
law.
Accordingly, it is
ORDERED that the motion titled “Motion to Alter or Amend the Judgment” (ECF
No. 29) that Plaintiff, Joe M. Toney, Jr., filed pro se on July 17, 2014, and which the
Court has treated as a motion to alter or amend the judgment pursuant to Fed. R. Civ.
P. 59(e), is denied.
DATED at Denver, Colorado, this 12th day of

August

, 2014.

BY THE COURT:

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

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