Forbes v. Garcia et al
ORDER denying 190 Motion for Reconsideration, by Magistrate Judge Michael E. Hegarty on 1/26/2017. (slibi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01860-MEH
GARCIA, Deputy, EID #13141,
YOSHIMIYA, Deputy, EID #13080, and
GONZALES, Deputy, EID #07092,
ORDER ON MOTION FOR RECONSIDERATION
Michael E. Hegarty, United States Magistrate Judge.
Before the Court is Plaintiff’s Motion for Reconsideration [filed December 29, 2016; ECF
No. 190], which the Court construes as a Motion to Alter or Amend Judgment pursuant to Fed. R.
Civ. P. 59(e). The parties have not requested oral argument, and the Court finds it will not assist
in the adjudication of the motion. Based on the record herein and for the reasons that follow, the
Plaintiff’s motion is denied.1
Plaintiff filed the operative Second Amended Complaint (“SAC”) on April 4, 2016 alleging
essentially that Defendants deprived him of his Eighth and/or Fourteenth Amendment rights against
cruel and unusual punishment by Defendant’s deliberate indifference to Plaintiff’s health and safety.
SAC, ECF No. 82. Defendants responded to the operative pleading by filing a Motion to Dismiss
The parties consented to this Court’s jurisdiction pursuant to 28 U.S.C. § 636 and D.C.
Colo. LCivR 40.1 on December 4, 2015. See ECF No. 23.
on April 12, 2016. ECF No. 86. On June 8, 2016, the Court granted in part and denied in part the
Defendants’ motion to dismiss, concluding that Plaintiff stated plausible claims for excessive force
in violation of the Fourteenth Amendment as alleged in Claims One and Four against Defendants
Garcia, Gonzales, and Yoshimiya and, for these claims, Plaintiff could seek recovery of
compensatory and punitive damages as requested in Claim One and compensatory damages as
requested in Claim Four. ECF No. 114.
Discovery proceeded on the remaining claims in this case and, thereafter, Defendants timely
filed a motion seeking summary judgment in their favor, contending Plaintiff had no evidence
demonstrating he properly exhausted his administrative remedies. Mot., ECF No. 179. The Court
agreed and issued an order granting summary judgment in the Defendants’ favor on December 15,
2016 concluding “the evidence produced is insufficient to demonstrate any issues of material fact
concerning whether Plaintiff properly exhausted his administrative remedies before bringing his
Claims One and Four against the Defendants in this action.” Order, ECF No. 186. The present
motion titled, “Objection to Docket 186 with Reconsideration on Order,” followed on December 29,
The Court must construe the Plaintiff’s motion to reconsider liberally because Plaintiff 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).
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 reconsider filed more
than  days after the final judgment should be considered pursuant to Rule 60(b). Id.; see also
Fed. R. Civ. P. 59(e).
Plaintiff filed his motion to reconsider 14 days after the order granting
summary judgment was entered in this action on December 15, 2016. Therefore, the Court will
consider the motion to reconsider pursuant to Rule 59(e). See id.
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). Such a motion is not an appropriate vehicle to “advance arguments that could have been
raised in prior briefing.” Id.; see also Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997) (“A
Rule 59(e) motion to alter or amend the judgment should be granted only to correct manifest errors
of law or to present newly discovered evidence.”). A motion to alter or amend that reiterates issues
originally raised in the motion and that seeks to challenge the legal correctness of the court’s
judgment by arguing that the district court misapplied the law or misunderstood the litigant’s
position correctly is asserted pursuant to Fed. R. Civ. P. 59(e). See Van Skiver, 952 F.2d at 1244.
The Court notes at the outset that, in his reply brief titled “Reply in Support of Docket 190,”
Plaintiff appears to seek withdrawal of his motion in favor of appeal to the Tenth Circuit Court of
Appeals (see ECF No. 195); however, because such request is not clear, the Court will proceed with
analysis and adjudication of the motion.
Here, Plaintiff’s motion refers to no “intervening change in controlling law” nor “the
availability of new evidence.” Thus, his motion is construed as brought under the third ground
seeking to challenge the legal correctness of the court’s judgment. This Court perceives no clear
error nor manifest injustice in its order. Plaintiff contends that “oral complaints” were sufficient to
exhaust his remedies for Claims One and Four; however, the Court has already concluded that
Plaintiff was required to exhaust all “available” remedies, which, in this case, included both “oral”
(informal) and written (formal) complaints. See Order, ECF No. 186 at 10–12. Furthermore, any
attempt by Plaintiff to advance arguments now that could have been addressed in the briefing on
summary judgment cannot serve as a basis to alter or amend the judgment.
Because the Plaintiff has failed to demonstrate an intervening change in controlling law; the
availability of new evidence; or the need to correct clear error or prevent manifest injustice, the
Court will deny Plaintiff’s Motion for Reconsideration [filed December 29, 2016; ECF No. 190].
Dated this 26th day of January, 2017 in Denver, Colorado.
BY THE COURT:
Michael E. Hegarty
United States Magistrate Judge
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