Kherdeen et al v. Obama

Filing 17

ORDER granting in part 16 Motion for Reconsideration. The Order of Dismissal (ECF No. 5 ) and the Judgment (ECF No. 6 ) entered in this action on April 15, 2014, are VACATED as to Plaintiff Mazen J. Kherdeen only. The clerk of the Court reinstat e and return this action to the Pro Se Docket. Plaintiff Kherdeen shall be the only named Plaintiff in the reinstated case. The April 22, 2014 Minute Order denying ECF Nos. 7 , 9 , 10 and 11 shall also be VACATED. By Judge Lewis T. Babcock on 6/4/2014.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00678-LTB
MAZEN J. KHERDEEN, and
JIM KHEN,
Plaintiffs,
v.
BARACK HUSSEIN OBAMA, et al.,
Defendants.

ORDER GRANTING MOTION FOR RECONSIDERATION

This matter is before the Court on the “Verified Notice of Excusable Neglect and
Motion to Reconsider/Reinstate or Reopen Case” (ECF No. 16), filed pro se by Plaintiff,
Mazen J. Kherdeen, on May 23, 2014. The Court must construe the document liberally
because Mr. Kherdeen 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). For the
reasons discussed below, the motion will be construed liberally as a motion for
reconsideration.
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). A motion to

reconsider filed more than twenty-eight days after the final judgment in an action should
be considered pursuant to Rule 60(b). 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 limit set forth under Rule 59(e)). Mr. Kherdeen’s motion to reconsider was
filed on May 23, 2014, 38 days after a Final Judgment was entered dismissing this
action on April 15, 2014. Therefore, the motion will be construed as a motion to
reconsider filed pursuant to Fed. R. Civ. P. 60(b).
Rule 60(b) provides that “on motion and just terms,” a court may relieve a party
from a final order because of “mistake, inadvertence, surprise, or excusable neglect
. . . [or] any other reason that justifies relief.” Fed.R.Civ.P. 60(b)(1), (6). The Court is
mindful that relief under Rule 60(b) “is extraordinary and may be granted only in
exceptional circumstances.” See Dronsejko v. Thornton, 632 F.3d 658, 664 (10th Cir.
2011) (internal quotation marks and citation omitted).
I. Procedural Background
Plaintiffs, Mazan J. Kherdeen and Jim Khen, who were detained at Aurora
Detention Center in Aurora, Colorado, at the time of filing, initiated this action on March
4, 2014, by submitting a Prisoner Complaint pursuant to 28 U.S.C. § 1331 and Bivens v.
Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). The
Prisoner Complaint was signed by only one of the Plaintiffs. Messrs. Kherdeen and
Khen also submitted one Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant
to 28 U.S.C. § 1915 that was signed by both Plaintiffs.
On March 6, 2014, Magistrate Judge Boyd N. Boland directed the Plaintiffs to file
a Prisoner Complaint signed by both of them. He further instructed each Plaintiff to
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submit a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C.
§ 1915, along with a certified copy of his inmate trust fund account statement showing
the Plaintiff’s account history for the six month period preceding their filing. (See ECF
No. 4). The Court advised Plaintiffs that they could pay the $400 filing fee in lieu of filing
a § 1915 Motion and Affidavit. Magistrate Judge Boland warned Plaintiffs in the March
6 Order that failure to cure the deficiencies noted would result in dismissal of this action
without further notice. Neither Plaintiff complied with the March 6 Order by the courtordered deadline. This action was thereafter dismissed on April 15, 2014 for the
Plaintiffs’ failure to cure deficiencies.
Mr. Kherdeen now seeks reconsideration of the April 15 dismissal order. He
states:
Plaintiff states under penalty of perjury that he had mailed responses to all
the deficiencies on Sunday, 3/16/14 at 9:00 p.m. by handing a court
addressed manila envelope to GEO prison duty officer Thornton, along
with kite #410 instructing her to place the envelope in the outgoing U.S.
Postal mailbox.
(ECF No. 16, at 2). Plaintiff further states that Lt. Knight, Ms. Thornton’s supervisor,
intercepted the envelope and prevented it from being delivered by the U.S. Postal
Service. (Id. at 3-4). On March 21, 2014, while Plaintiff was at the Denver Health
Hospital psychiatric ward, he received some of his inmate property, including the
envelope he had delivered to Thornton for mailing to the court. (Id. at 4). At that time,
Plaintiff obtained another envelope and attempted to send his response to the March 6
Order to the Court, but he was advised that ICE (Immigration and Customs
Enforcement) would not allow him to mail anything out of the hospital. (Id. at 4-5). After
Mr. Kherdeen was released from the hospital, he attempted again on March 31, 2014,
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to mail the compliance documents to the Court by delivering the envelope to Lt. Knight
for mailing. (Id. at 5). However, Lt. Knight placed the envelope in Plaintiff’s private
property and did not mail it to the Court. (Id. at 5). Plaintiff discovered the unmailed
documents in his private property after he arrived at his new facility in San Diego on
April 3, 2014. (Id.). Mr. Kherdeen attempted to mail the documents to the Court on
April 4 and 5, 2014, but the envelopes were returned to him without explanation. (Id. at
5, 6). Finally, he received notice from prison officials on April 18, 2014, that his mail
was sent out on April 14, 2014. (Id. at 6). The Court received Plaintiff’s documents on
April 17, 2007, two days after this case was dismissed. (See ECF Nos. 7-12).1 Mr.
Kherdeen states that he received a copy of Court’s April 15, 2014 Order of Dismissal on
April 28, 2014. (ECF No. 16, at 1).
Mr. Kherdeen asks the Court to reinstate this action because prison officials
interfered with his efforts to comply with the March 6, 2014 Order Directing Plaintiff to
Cure Deficiencies and, therefore, his failure to meet the court-ordered deadline was
beyond his control. Mr. Kherdeen further asserts that failure to reopen the case would
prejudice him because he has lost many of the documents needed to refile this action.
(ECF No. 16, at 23).

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The Court’s filing system reflects that Mr. Kherdeen filed the following documents on April 17,
2014: Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 7); Notice of
Change of Address(ECF No. 8); Motion for Injunctive Relief (ECF No. 9); Motion to Order Prison Officials
at ICE and GEO to Prepare and Deliver to Plaintiff(s) a Certified Copy of Trust Fund Account Statement
(ECF No. 10); Motion for Certification as Class Action (ECF No. 11); and, a “Certificate of Compliance with
Cure Deficiencies Order Dated 3/06/14" (ECF No. 12). In ECF No. 10, Mr. Kherdeen represents that
prison officials have refused to provide him with a requested copy of his inmate account statement. The
April 17 Motions were denied as moot on April 22, 2014 based on the April 15, 2014 dismissal order. (See
ECF No. 13).
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II. Analysis
Mr. Kherdeen’s factual allegations demonstrate that he made diligent efforts to
comply with the Court’s March 6 Order, but his efforts were thwarted repeatedly by
prison officials. Furthermore, Plaintiff has submitted documents to the Court in an
attempt to comply with the March 6 Order. The Court finds that it is in the interests of
justice to provide Mr. Kherdeen the benefit of the doubt and vacate the order dismissing
this action, in part. Therefore, the Motion for Reconsideration will be granted, with
respect to Plaintiff Kherdeen only. The case will be returned to the Pro Se Docket for
review under § 1915(e)(2). The April 22, 2014 Minute Order denying ECF Nos. 7, 9, 10
and 11) shall be vacated. Accordingly, it is
ORDERED that the “Verified Notice of Excusable Neglect and Motion to
Reconsider/Reinstate or Reopen Case” (ECF No. 16), filed pro se by Plaintiff, Mazen J.
Kherdeen, on May 23, 2014, which the Court has construed liberally as a motion for
reconsideration pursuant to Fed.R.Civ.P. 60(b), is GRANTED, in part. It is
FURTHER ORDERED that the Order of Dismissal (ECF No. 5) and the
Judgment (ECF No. 6) entered in this action on April 15, 2014, are VACATED as to
Plaintiff Mazen J. Kherdeen only. It is
FURTHER ORDERED that the clerk of the Court reinstate and return this action
to the Pro Se Docket. Plaintiff Kherdeen shall be the only named Plaintiff in the
reinstated case. It is

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FURTHER ORDERED that the April 22, 2014 Minute Order denying ECF Nos. 7,
9, 10 and 11 shall also be VACATED.

DATED at Denver, Colorado, this

4th

day of

June

, 2014.

BY THE COURT:

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

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