Kherdeen et al v. Obama
Filing
24
ORDER denying 23 Motion to Alter or Amend 'Dismissal Order Without Prejudice' Pursuant to Fed. R. Civ. P. 59(e) by Judge Lewis T. Babcock on 8/26/14.(dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00678-LTB
MAZEN J. KHERDEEN,
Plaintiff,
v.
BARACK HUSSEIN OBAMA, et al.,
Defendants.
ORDER DENYING MOTION FOR RECONSIDERATION
This matter is before the Court on the “Motion to Alter or Amend ‘Dismissal Order
Without Prejudice’ Pursuant to Fed. R. Civ. P. 59(e)” (ECF No. 23), filed pro se by
Plaintiff , Mazen J. Kherdeen, on August 7, 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 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)). Plaintiff’s motion to reconsider was filed 16
days after a Final Judgment was entered dismissing this action on July 22, 2014.
Therefore, the motion will be construed as a motion to reconsider filed pursuant to Fed.
R. Civ. P. 59(e).
“Grounds warranting a motion to reconsider [under Rule 59(e)] 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.” Servants of Paraclete v.
Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citing Brumark Corp. v. Samson
Resources Corp., 57 F.3d 941, 948 (10th Cir. 1995)).
I. Procedural Background
Mr. Kherdeen, who was 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 action was dismissed on
April 15, 2014, because Plaintiff failed to comply with a March 6, 2014 Order directing
him to cure deficiencies. (ECF No. 5).
On May 23, 2014, Mr. Kherdeen filed a motion for reconsideration of the April 15
dismissal order. Plaintiff asked the Court to reinstate this action because prison officials
interfered with his efforts to comply with the March 6, 2014 Order directing him to cure
deficiencies and, therefore, his failure to meet the court-ordered deadline was beyond
his control. In a June 4, 2014 Order (ECF No. 17), the Court concluded that Mr.
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Kherdeen’s factual allegations in the motion for reconsideration demonstrated that
Plaintiff made diligent efforts to comply with the Court’s March 6 Order, but his efforts
were thwarted repeatedly by prison officials. The Court further found that Plaintiff had
submitted documents to the Court in an attempt to comply with the March 6 Order. As
such, the Court determined that the interests of justice warranted the reinstatement of
this action, with respect to Plaintiff Kherdeen.1
After this case was reinstated, Magistrate Judge Boyd N. Boland issued an order
on June 12, 2104 (ECF No. 18), directing the Mr. Kherdeen to comply with the March 6,
2014 Order to cure deficiencies. Specifically, Magistrate Judge Boland instructed
Plaintiff that his Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28
U.S.C. § 1915 did not include the necessary attachments, to wit, the form authorizing
the disbursement of filing fee payments from Plaintiff’s inmate trust fund account, and a
certified copy of Plaintiff’s inmate account statement showing account activity for the six
months preceding this filing. (Id.).
In the June 12 Order, Magistrate Judge Boland ordered the Plaintiff to cure the
deficiencies designated in the March 6 Order within thirty (30) days by submitting a
certified copy of his inmate account statement for the six-month period preceding his
filing, along with an authorization for disbursement of funds from his inmate account to
pay the $350.00 filing fee. (ECF No. 18). The Court reminded Plaintiff that the
necessary forms are attached to the Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 and can be obtained at www.cod.uscourts.gov.
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The Complaint was filed by Plaintiffs Mazan J. Kherdeen and Jim Khen. Because Mr. Khen did
not seek reconsideration of the dismissal order, the action was not reinstated with respect to him.
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(Id.). Magistrate Judge Boland warned Plaintiff in the June 12 Order that if he failed to
cure the designated deficiencies within thirty days and failed to show good cause for the
same, the action would be dismissed without further notice. (Id.). Magistrate Judge
Boland further instructed Plaintiff that if he was unable to obtain a certified copy of his
inmate account statement from federal officials, he must file a document with the Court
detailing his specific efforts to comply with this Order and the specific actions of named
individuals who refused to provide him with the account statement. (Id.).
On June 16, 2014, Plaintiff filed a “Notice of Identified Defendants Under
John Doe 1 to 1000 and Jane Doe 1-1000" (ECF No. 20), but he did not comply in
whole or in part with the June 12 Order. Accordingly, on July 22, 2014, the Court
dismissed this action without prejudice pursuant to Rule 41(b) of the Federal Rules of
Civil Procedure for the failure of Plaintiff to comply with the June 12, 2014 order
directing him to cure deficiencies. (ECF No. 21).
II. Analysis
In the motion for reconsideration, Plaintiff states that “[s]ince his arrival at the
new prison that is under the control and management by ICE and CCA, Plaintiff
repeatedly requested a trust account statement from both of them to no avail.” (ECF
No. 23, at 13). He also submits copies of request for assistance forms, dated June 23
and August 12, 2014, in which he asks his unit manager for a certified copy of his
prisoner trust fund account statement. (Id. at 15, 16). Plaintiff states that he has been
unable to obtain a certified copy of his inmate account statement, but he has provided
the Court with an uncertified copy, printed on July 2, 2014, showing a negative balance
in his inmate account. (Id. at 23, 24). He has also submitted a release of funds
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authorization form dated July 25, 2014. (Id. at 25).
Although Mr. Kherdeen has demonstrated an ongoing problem in obtaining a
copy of his inmate trust fund account statement from prison officials, he did not attempt
to comply with the June 12 Order before this action was dismissed on July 22. Plaintiff
was specifically warned in the June 12 Order that if he was unable to obtain a certified
copy of his inmate account statement from federal officials, he must file a document with
the Court detailing his specific efforts to comply with this Order and the specific actions
of named individuals who refused to provide him with the account statement. However,
Mr. Kherdeen did not file the requisite documentation, or move for an extension of time,
before this action was dismissed on July 22, 2014. Instead, he filed only a “Notice of
Identified Defendants under John Doe 1 to 1000 and Jane Doe 1 to 1000” on June 16,
2014 (ECF No. 20). Mr. Kherdeen has not articulated any reason for his failure to
advise the Court, within the thirty-day deadline, that he would not be able to comply with
the June 16 Order.
Upon consideration of the motion to reconsider and the entire file, the Court finds
that Mr. Kherdeen has not demonstrated why the Court should reconsider and vacate
the order dismissing this action.
Plaintiff is reminded that the dismissal was without prejudice and that he may file
a new civil rights action if he desires. Accordingly, it is
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ORDERED that the “Motion to Alter or Amend ‘Dismissal Order Without
Prejudice’ Pursuant to Fed. R. Civ. P. 59(e)” (ECF No. 23), filed on August 7, 2014,
which the Court has liberally construed as a motion for reconsideration under Fed. R.
Civ. P. 59(e), is DENIED.
DATED at Denver, Colorado, this
26th
day of
August
, 2014.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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