Bomprezzi v. Ohanian

Filing 7

ORDER denying request for reconsideration 6 by Judge Lewis T. Babcock on 3/18/14.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00199-LTB
MEL BOMPREZZI,
Plaintiff,
v.
ARA OHANIAN,
Defendant.

ORDER DENYING MOTION TO RECONSIDERATION

The matter before the Court is the “Reconsideration of Dismissal Order Dated
March 4th, 2014,” ECF No. 6, that Plaintiff, Mel Bomprezzi, filed on March 13, 2014.
Mr. Bomprezzi asserts the Court acted in bad faith dismissing this case. The Court
must construe the request liberally because Mr. Bomprezzi 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 reconsideration of the dismissal order for the
following reasons.
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
twenty-eight days after the judgment is entered. See Fed. R. Civ. P. 59(e). The Court
will consider Mr. Bomprezzi’s request as a Motion to Reconsider filed pursuant to Rule

59(e) because it was filed within twenty-eight days after the dismissal was entered in
this action on March 4, 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). In the Motion to Reconsider, Mr. Bomprezzi
claims he was unaware of the January 24, 2014 Order directing him to cure deficiencies
in his Complaint and Magistrate Judge Boland did not provide the Court-approved forms
to him for filing a writ of prohibition and for requesting leave to proceed pursuant to 28
U.S.C. § 1915. Mr. Bomprezzi also asserts that he is not required to use a Courtapproved form.
In the January 24 Order, Mr. Bomprezzi was directed to cure certain deficiencies.
The Order was sent to Mr. Bomprezzi on January 24 by the Clerk of the Court. No mail
was returned to the Court indicating Mr. Bomprezzi did not receive the Order. Also, Mr.
Bomprezzi received the Order of Dismissal, which was mailed to the same address as
the January 24 Order. Furthermore, Mr. Bomprezzi has been required to cure
deficiencies in other cases he has filed with this Court, including Bomprezzi v. Hoffman,
et al., No. 13-cv-02085-CMA-BNB (D. Colo. Filed Aug. 5, 2013), in which he was told to
obtain the required forms through the assistance of his case manager or facility’s legal
assistant, id. at ECF No. 3, and he complied. Mr. Bomprezzi, therefore, is aware that
the Court-approved forms used by prisoners in filing civil actions in this Court are

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available at the facility where he is housed and he does not need to obtain the forms
from the Court.
Furthermore, pursuant to Rule 5.1(c) of the Local Rules of Practice of the United
States District Court for the District of Colorado-Civil, “an unrepresented prisoner or
party shall use the forms and procedures posted on the court’s website.” The United
States Court of Appeals for the Tenth Circuit repeatedly has upheld the requirement that
pro se litigants comply with local court rules requiring use of proper Court-approved
forms and rejected constitutional challenges to such rules. See Georgacarakos v.
Watts, 368 F. App'x 917, 918-19 (10th Cir. 2010) (no abuse in its discretion in
dismissing civil rights action without prejudice for noncompliance with local rules
requiring prisoner to use court-approved form to file complaint); Durham v. Lappin, 346
F. App'x 330, 332-33 (10th Cir. 2009) (within district court's discretion and no violation of
equal protection rights to dismiss prisoner's complaint for failure to use court-approved
forms pursuant to local rule); Kosterow v. United States Marshal's Serv., 345 F. App'x
321, 322-33 (10th Cir. 2009) (within district court's discretion to dismiss complaint for
failure to use proper court form); Young v. United States, 316 F. App'x 764, 769-71
(10th Cir. 2009) (not abuse of district court’s discretion or a constitutional violation to
dismiss prisoner complaint for repeated refusal to file complaint on court-approved
prisoner complaint pursuant to local court rule); Maunz v. Denver Dist. Court, 160 F.
App’x 719, 720-21 (10th Cir. 2005) (not abuse of discretion to dismiss prisoner action
where inmate failed to file habeas corpus application on proper form); Daily v.
Municipality of Adams County, 117 F. App'x 669, 671-72 (10th Cir. 2004) (failure to
comply with local rule requiring pro se prisoners to use court-approved form to file

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action not nonwillful, and prisoner's failure to use required form supported dismissal of
action).
The Court, therefore, will deny Mr. Bomprezzi’s Motion because he fails to
demonstrate reinstatement of this action is deserving. Accordingly, it is
ORDERED that Mr. Bomprezzi’s request for reconsideration, ECF No. 6, is
construed as a Motion to Reconsider filed pursuant to Fed. R. CIv. P. 59(e) and is
denied.
DATED at Denver, Colorado, this

18th

day of

March

, 2014.

BY THE COURT:

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

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