Brenner v. Executive Director of the CDOC et al

Filing 14

ORDER denying 13 "Relief from a Judgment Pursuant to U.S.C.S. Fed Rules Civ. Pro R 60(6)" by Judge Lewis T. Babcock on 3/23/16.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02611-LTB

PATRICK L. BRENNER,
Applicant,
v.
EXECUTIVE DIRECTOR OF THE CDOC, and
WARDEN OF COLORADO TERRITORIAL CORRECTIONAL FACILITY,
Respondents.

ORDER DENYING MOTION TO RECONSIDER

The matter before the Court is the pleading titled, ARelief from a Judgment
Pursuant to U.S.C.S. Fed Rules Civ. Pro R 60(6),@ ECF No. 13. Applicant is in the
custody of the Colorado Department of Corrections and currently is incarcerated at the
Fremont Correctional Facility in Cañon City, Colorado. The Court must construe the
Motion liberally because Applicant 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). For the
reasons stated below, the Court will deny the Motion.
A litigant subject to an adverse judgment, and who seeks reconsideration by the
district court of that adverse judgment, may Afile 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

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twenty-eight days after the judgment is entered. See Fed. R. Civ. P. 59(e). The Court
will consider the request for relief pursuant to Rule 59(e) because it was filed within
twenty-eight days after this action was dismissed and judgment was entered on March 4,
2016. 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).
For the same reasons stated in the March 4, 2016 Order of Dismissal, the Court
will deny Applicant=s request for relief from judgment. Applicant 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 Applicant=s ARelief from a Judgment Pursuant to U.S.C.S. Fed
Rules Civ. Pro R 60(6),@ ECF No. 13, is construed as filed pursuant to Fed. R. Civ. P.
59(e) and is denied.
DATED at Denver, Colorado, this

23rd day of

March

, 2016.

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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