Gabriel v. El Paso County Criminal Justice Center et al

Filing 90

ORDER denying 88 Amended Motion To Reconsider 84 Order Granting Defendant Cooper's Motion for Extension To File Out of Time. By Judge Robert E. Blackburn on 11/12/2015.(mlace, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 15-cv-01491-REB-CBS
VINCENT GABRIEL,
Plaintiff,
v.
EL PASO COUNTY CRIMINAL JUSTICE CENTER,
THERESA PEDLEY COOPER,
CORRECT CARE SOLUTIONS,
CORRECTIONAL HEALTHCARE COMPANIES, and
In Theresa Pedley’s and her male counterpart’s individual capacity as employees of El
Paso CJC,
Defendants.

ORDER DENYING AMENDED MOTION TO RECONSIDER
[ECF DOC 84] GRANTING DEFENDANT COOPER’S
MOTION FOR EXTENSION TO FILE OUT OF TIME
Blackburn, J.
The matter before me is plaintiff’s Amended Motion To Reconsider [ECF Doc
84] Order Granting Defendant Cooper’s Motion for Extension To File Out of Time
[#88],1 filed November 11, 2015. 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.

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“[#88]” 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.

Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972)). Even
applying such liberality, however, nothing in plaintiff’s motion warrants reconsideration
of my previous order.
As an initial matter, nothing in the Federal Rules of Civil Procedure or the Local
Rules of Practice of the United States District Court for the District of Colorado – Civil
contemplates a right to file a reply to an objection to a non-dispositive ruling of the
magistrate judge under Fed. R. Civ. P. 72(a). Indeed, D.C.COLO.LCivR 7.1(d)
expressly provides the court discretion to rule on a motion “at any time after it is filed.”2
Plaintiff’s filing of a “notice” that he intended to file a reply (see [#81], filed November 5,
2015) creates no obligation on this court to stay its ruling in anticipation thereof. Had
plaintiff wished the court to consider a reply, the proper procedure would have been to
file a motion for leave to file a reply.
Moreover, and substantively, nothing in plaintiff’s current motion demonstrates
error in this court’s prior ruling. 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

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Based on this same discretion, I exercise my prerogative to rule on this motion without awaiting
a response.

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omitted). Plaintiff’s latest submission implicates none of these considerations. Plaintiff
has offered nothing more than a reiteration of his previous arguments, which I have
rejected already. The magistrate judge more than adequately explained the rationale
behind his decision in this regard in his Order Regarding Plaintiff’s Motion for
Reconsideration [#66], filed October 26, 2015. It is plain that the magistrate judge
considered all factors relevant to a determination of excusable neglect in making his
ruling. Plaintiff’s continued disagreement with that reasonable and well-supported
determination provides no justification for reconsideration of my prior order.
Moreover, as the magistrate judge aptly noted “most importantly, ‘[t]he preferred
disposition of any case is upon its merits and not by default judgment.’” (Id. at 3
(quoting) Gomes v. Williams, 420 F.2d 1364, 1366 (10th Cir. 1970)). The present
motion represents plaintiff’s third iteration of his objection to the magistrate judge’s
decision allowing an out-of-time responsive pleading by this defendant. This case most
emphatically does not present an instance in which the defendant has been so
recalcitrant nor the plaintiff so prejudiced that the extreme and extraordinary remedy of
default is warranted. Plaintiff’s claims against Ms. Cooper will be determined on their
merits. It is time for plaintiff to focus his energies in that direction.
THEREFORE, IT IS ORDERED that plaintiff’s Amended Motion To Reconsider
[ECF Doc 84] Order Granting Defendant Cooper’s Motion for Extension To File
Out of Time [#88], filed November 11, 2015, is denied.

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Dated November 12, 2015, at Denver, Colorado.
BY THE COURT:

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