Duncan v. Ritter Jr. et al

Filing 74

ORDER re: 73 Objection filed by James Roger Duncan. Plaintiff's Objection to Judge Blackburn Order Adopting Recommendation of the United States Magistrate Judge [# 73 ], filed December 31, 2014, construed as a motion to reconsider, is DENIED. By Judge Robert E. Blackburn on 01/02/2015. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 14-cv-00301-REB-BNB
JAMES ROGER DUNCAN,
Plaintiff,
v.
JOHN W. HICKENLOOPER, governor,
RICK RAEMISCH, executive director,
WARDEN MILYARD,
WARDEN FALK, and
CASE MANAGER LUECK,
Defendants.

ORDER
Blackburn, J.
The matter before me is plaintiff’s Objection to Judge Blackburn Order
Adopting Recommendation of the United States Magistrate Judge [#73],1 filed
December 31, 2014. I construe the objection as a motion for reconsideration, but deny
the relief thus requested.
Because plaintiff is proceeding pro se, I have construed his pleadings more
liberally and held them to a less stringent standard than formal pleadings drafted by
lawyers. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167
L.Ed.2d 1081 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519,
1

“[#73]” 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.

520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972)). Nevertheless, the bases for
granting reconsideration are extremely limited:
Grounds warranting a motion to reconsider 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. Thus, 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.
Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citations
omitted).
Nothing in plaintiff’s latest submission implicates any of these bases for
reconsidering a prior order of the court. Instead, plaintiff principally appears to be
confused by the magistrate judge’s discussion of the Eleventh Amendment issues
implicated by the possibility that plaintiff intended to assert official capacity claims,
claims which plaintiff insists he did not intend to raise. At worst, this argument makes
that much of the magistrate judge’s recommendation (and so much of my concomitant
order which adopted it) moot.2
Nothing else in plaintiff’s motion suggests any basis – let alone any legally
cognizable or proper basis – for reconsideration of my prior order. While plaintiff’s
asserted lack of knowledge of the law entitles him to a degree of leeway, it does not
permit him to pursue claims for which he can allege no facts sufficient to make out
plausible legal claims.
2

The magistrate judge’s legal analysis of these issues nevertheless was correct. See
Pennhurst State School & Hospital v. Halderman, 465 U.S, 89, 102-06, 104 S.Ct. 900, 908-11, 79
L.Ed.2d 67 (1984).

2

THEREFORE, IT IS plaintiff’s Objection to Judge Blackburn Order Adopting
Recommendation of the United States Magistrate Judge [#73], filed December 31,
2014, construed as a motion to reconsider, is DENIED
Dated January 2, 2015, at Denver, Colorado.
BY THE COURT:

3