Farrell v. State of Colorado et al

Filing 11

ORDER Denying 10 Construed Motion to Reconsider. By Judge Lewis T. Babcock on 7/9/2014. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01311-LTB
TERRANCE M. FARRELL III,
Plaintiff,
v.

STATE OF COLORADO,
RICK RAEMISCH,
ESTATE OF TOM CLEMENTS,
ROGER WERHOLTZ,
TONY CAROCHI,
ARISTEDES ZAVARIS,
JOE ORTIZ, and
JOHN SUTHERS,
Defendants.

ORDER DENYING CONSTRUED MOTION TO RECONSIDER

The matter before the Court is the document, ECF No. 10, that Plaintiff Terrance
M. Farrell III, a pro se prisoner litigant, filed on July 2, 2014. Plaintiff is in the custody of
the Colorado Department of Corrections and currently is incarcerated at the Bent
County Correctional Center in Las Animas, Colorado. Upon review of the July 2
document, the Court finds that Plaintiff seeks reconsideration of the Court’s Order of
Dismissal entered on June 27, 2014. The Court must construe the document 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, 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 Plaintiff’s Motion pursuant to Rule 59(e) because it was filed within
twenty-eight days after the dismissal was entered in this action on June 27, 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).
In the Motion, Plaintiff contends that he filed a proper 28 U.S.C. § 1915 motion
within the time allowed, but the Court, “ie. [sic] Clerk/Judge Shaffer mistakenly bundled
it with 13-cv-01605-MSK-CBS.” ECF No. 10 at 1. The Court has reviewed the Docket
in Case No. 13-cv-01605-MSK-CBS. Plaintiff did file a § 1915 motion and affidavit in
that case on May 29, 2014. The caption on the motion, however, clearly identifies Case
No.13-cv-01605-MSK-CBS. The Court did not mistakenly file the § 1915 motion in

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Case No. 13-cv-01605, and Plaintiff had notice of the mistake when he received
notification of the June 17, 2014 dismissal of the § 1915 motion in Case No. 13-cv01605-MSK-CBS, which was before this case was dismissed.
The Court does hold a pro se pleading to a less stringent standard than those
drafted by attorneys,” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007)
(citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972), but, a
plaintiff’s pro se status does not entitle him to an application of different rules, see
Montoya v. Chao, 296 F.3d 952, 958 (10th Cir. 2002). Plaintiff is responsible for the
management of his cases and proper processing of his filings.
The Court, therefore, will deny Plaintiff’s Motion because he fails to demonstrate
that the Court misapprehended the facts, his position, or the controlling law and that
reinstatement of this action is deserving. Accordingly, it is
ORDERED that Plaintiff’s construed Motion to Reconsider, ECF No. 10, filed on
July 2, 2014, is denied.
DATED at Denver, Colorado, this

9th

day of

July

, 2014.

BY THE COURT:

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

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