Robbins v. Colorado Department of Human Services et al

Filing 10

ORDER denying 9 Rule 59(e) Motion to Alter or Amend Judgement by Judge Lewis T. Babcock on 1/11/16.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-2348-LTB
EDWARD D. ROBBINS, No. 0023420,
Plaintiff,
v.
COLORADO DEPARTMENT OF HUMAN SERVICES;
RON HART, Superintendent; and
ANDERSON, DPS Captain,
Defendants.

ORDER DENYING MOTION TO RECONSIDER

Plaintiff Edward D. Robbins has filed pro se, a Rule 59(e) Motion to Alter or Amend
Judgement, ECF No. 9, in which he asks the Court to reconsider and vacate the Order of
Dismissal and the Judgment entered in this action on December 9, 2015. The Court
dismissed the instant action with prejudice because Plaintiff failed to state a claim upon
which relief could be granted. The Court must construe the request 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). For the reasons discussed
below, the Motion to Reconsider filed pursuant to Rule 59(e) will be denied.
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
request as a Motion to Reconsider filed pursuant to Rule 59(e) because the motion was
filed within twenty-eight days after the Judgment was entered in this action. See Van
Skiver, 952 F.2d at 1243 (stating that motion to reconsider filed within ten-day limit for filing
a Rule 59(e) motion under prior version of that rule should be construed as a Rule 59(e)
motion).
A Rule 59(e) motion may be granted “to correct manifest errors of law or to present
newly discovered evidence.” Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997)
(internal quotation marks omitted). Relief under Rule 59(e) also is appropriate when “the
court has misapprehended the facts, a party’s position, or the controlling law.” Servants
of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
Mr. Robbins filed a civil rights action complaining about the conditions of his
confinement while he was confined at the CMHIP for approximately one month.
Specifically, he takes issue with the "cell door policy" concerning welfare checks. He
alleges that these checks occur every fifteen minutes during the night until 7:30 A.M. He
complains that for thirty-two (32) days he was disturbed by the repeated opening and
closing of his cell door. He admits that the policy is a safety measure implemented to
prevent inmates from inflicting self-harm upon themselves and further claims that this is a
legitimate governmental interest. The Court dismissed his claim because the actions
complained of did not rise to the level of a constitutional violation under the Fourteenth
Amendment because subjecting a prisoner to a few hours of periodic loud noises that
merely annoy, rather than injure, does not demonstrate a disregard for the prisoner's
welfare. See Lunsford v. Bennett, 17 F.3d 1574, 1580 (7th Cir. 1994).
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Plaintiff further complained that the law library at the CMHIP is inadequate because
inmates must request certain resources by specific citation. He complained that on
September 7, 2015, one of his requests for statutes and case law was delayed
approximately four days and that, when it arrived, it was incomplete. The Court dismissed
this claim as well because it failed to demonstrate a violation of his First Amendment rights.
Upon consideration of the motion to reconsider and the entire file, the Court finds
that Mr. Robbins fails to demonstrate any reason why the Court should reconsider and
vacate the order dismissing this action.
In dismissing Plaintiff’s action, this Court relied on Supreme Court precedent as it
is required to do. Moreover, the Order of Dismissal does not preclude Plaintiff from filing
an appeal. He simply must either pay the filing fee or file a motion to proceed in forma
pauperis in the Court of Appeals for the Tenth Circuit.
Finally, the Court notes that Plaintiff did not file any grievances concerning his claims
while he was a patient at the CMHIP. Instead, he waited until October 31, 2015 to attempt
to exhaust his available administrative remedies with respect to his claims (ECF No. 9, p.
13). On November 12, 2015, he received a response which informed him that only current
patients were allowed to use the CMHIP grievance process (ECF No. 9, p. 19).
Accordingly, he was not entitled to seek relief in federal court until he had exhausted his
administrative remedies.
The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
Order would not be taken in good faith and therefore in forma pauperis status will be denied
for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If Plaintiff
files a notice of appeal he also must pay the full $505 appellate filing fee or file a motion to
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proceed in forma pauperis in the United States Court of Appeals for the Tenth Circuit within
thirty days in accordance with Fed. R. App. P. 24. Accordingly, it is
ORDERED that the “Rule 59(e) Motion to Alter or Amend Judgement” (ECF No. 9)
is DENIED. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
DENIED.
DATED at Denver, Colorado, this 11th

day of January, 2016.
BY THE COURT:

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

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