Adkins v. Schmidt et al

Filing 17

ORDER denying 16 Motion for Reconsideration by Judge Lewis T. Babcock on 12/9/14.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02454-LTB
CHET HARVEY ADKINS,
Plaintiff,
v.
JOE SCHMIDT, Individually and as the Commissioner of the AK Department of
Corrections,
CHRISTOPHER PAGEL, Individually and as an Employee of the Hudson Correctional
Facility and the GEO Group, and
JOE D. DRIVER, Individually and as an employee of the Hudson Correctional Facility
and the GEO Group,
Defendants.

ORDER DENYING MOTION FOR RECONSIDERATION

The matter before the Court is the Motion for Reconsideration of Dismissal, ECF
No. 16, that Plaintiff Chet Harvey Adkins, a pro se prisoner litigant, filed on December 5,
2014. Plaintiff currently is held at the Glenwood Correctional Community Residential
Center in Anchorage, Alaska. Upon review of the Motion, the Court finds that Plaintiff
seeks reconsideration of the Court’s Order of Dismissal entered on November 24, 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 November 24, 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 for reconsideration 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 because he was not housed in a federal
prison but was a state prisoner housed in a private contract prison, when he was
removed from his office assistant position and denied access to training programs, he
was subject to an atypical and significant hardship due to the removal and denial.
As the Court stated in the Order of Dismissal, Plaintiff does not have a federal
constitutional right to a job or education programs, and as such is not subject to an
atypical and significant hardship when compared to the ordinary incidents of prison life.
Whether Plaintiff is housed in a federal or in a state prison facility, he does not
assert a violation of his constitutional rights pursuant to 42 U.S.C. § 1983 regarding the

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loss of his job. In Templeman v. Gunter, 16 F.3d 367, 370 (10th Cir. 1994), the Tenth
Circuit found that loss of a prisoner’s job does not result in a deprivation of liberty or
property. The prisoner in Templeman was a state prisoner.
Furthermore, the plaintiff in Sherratt v. Utah Dep’t of Corrections, 545 F. App’x
744, 748 (10th Cir. 2013), was a state prisoner. The Tenth Circuit found in Sherratt that
participation in a rehabilitative program is a privilege, not a right. Finally, in
Termunde v. Cook, 684 F. Supp. 255, 259 (D. Utah 1988), where the court found no
courts have accepted that an inmate has a constitutional right to any educational
programs, the plaintiff was a state prisoner. Also, the Tenth Circuit in Sherratt relied on
Termunde for the finding that an inmate does not have a right to a rehabilitative
program.
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 Motion for Reconsideration, ECF No. 16, filed on
December 5, 2014, is denied.
DATED at Denver, Colorado, this

9th

day of

December

, 2014.

BY THE COURT:

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

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