Aurelio et al v. Correctional Corporation of America et al

Filing 98

ORDER by Chief Judge Philip A. Brimmer on 11/18/2019, re: 74 plaintiff Allen De Atley's Motion for Reconsideration is DENIED. (sphil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 17-cv-01073-PAB-MEH
NICHOLAS J. AURELIO and
ALLEN DE ATLEY,
Plaintiffs,
v.
CORRECTIONS CORPORATION OF AMERICA,
CORE CIVIC, INC.,
MICHAEL MILLER,
INVESTIGATOR ORTIZ,
MS. WALTER, and
DAVID M. ZUPAN,
Defendants.

ORDER

This matter is before the Court on plaintiff Allen De Atley’s Motion for
Reconsideration [Docket No. 74] filed on September 11, 2019. On October 2, 2019,
defendants filed a response. Docket No. 89. The Court has jurisdiction under 28
U.S.C. § 1331.
On June 2, 2017, plaintiffs Nicholas Aurelio and Allen De Atley, currently in the
custody of the Colorado Department of Corrections (“CDOC”), sued defendants under
42 U.S.C. § 1983 alleging that their right of access to the courts under the First, Sixth,
and Fourteenth Amendments had been infringed. Docket No. 6 at 6, ¶ 25. On August
29, 2019, the Court granted defendants’ motion for summary judgment and dismissed
plaintiffs’ complaint with prejudice. Docket No. 72 at 10.

On September 11, 2019, plaintiff De Atley filed a motion for reconsideration
[Docket No. 74]. He argues that “material fact questions exist precluding [the entry] of
summary judgment.” Docket No. 74 at 2. Plaintiff appears to argue that he has claims
to raise under the Colorado Organized Crime Control Act (“COCCA”), Colo. Rev. Stat.
§ 18-17-101 et seq., based upon “crimes being committed by [defendants] and . . .
Judges Brimmer and Hegarty and [their] staff.” Id. Specifically, plaintiff argues that
“[p]robable cause existed to support charges that defendants violated the [Racketeer
Influenced and Corrupt Organizations Act (“RICO”)] statutes and [COCCA] based on
evidence that defendants knowingly conducted or participated in affairs of a corporation
through series of acts of ‘mail fraud,’ ‘wire fraud,’ and ‘theft,’ fraudulent and false
statements, perjury committing civil rights violations including constitutional violations.”
Id.
The Federal Rules of Civil Procedure do not specifically provide for motions for
reconsideration. See Hatfield v. Bd. of County Comm’rs for Converse County, 52 F.3d
858, 861 (10th Cir. 1995). Instead, motions for reconsideration fall within a court’s
plenary power to revisit and amend interlocutory orders as justice requires. See
Paramount Pictures Corp. v. Thompson Theatres, Inc., 621 F.2d 1088, 1090 (10th Cir.
1980) (citing Fed. R. Civ. P. 54(b)); see also Houston Fearless Corp., 313 F.2d at 92.
However, in order to avoid the inefficiency which would attend the repeated
re-adjudication of interlocutory orders, judges in this district have imposed limits on their
broad discretion to revisit interlocutory orders. See, e.g., Montano v. Chao, No. 07-cv00735-EWN-KMT, 2008 WL 4427087, at *5-6 (D. Colo. Sept. 28, 2008) (a pplying Rule

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60(b) analysis to the reconsideration of interlocutory order); United Fire & Cas. Co. v.
McCrerey & Roberts Constr. Co., No. 06-cv-00037-WYD-CBS, 2007 WL 1306484, at
*1-2 (D. Colo. May 3, 2007) (applying Rule 59(e) standard to the reconsideration of the
duty-to-defend order). Regardless of the analysis applied, the basic assessment tends
to be the same: courts consider whether new evidence or legal authority has emerged
or whether the prior ruling was clearly in error. Motions to reconsider are generally an
inappropriate vehicle to advance “new arguments, or supporting facts which were
available at the time of the original motion.” Servants of the Paraclete v. Does, 204
F.3d 1005, 1012 (10th Cir. 2000). Because plaintif f is proceeding pro se, the Court will
construe his motion for reconsideration liberally without serving as his advocate. See
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Plaintiff has not demonstrated that new evidence or legal authority has emerged
since the Court’s August 29, 2019 order granting defendants’ motion for summary
judgment that would justify granting reconsideration here. Instead, plaintiff argues that
“clearly [the] Court has tried to not follow any law” and that “the Court must re[-]read the
statement of De Atley with all the proof.” Docket No. 74 at 3. 1 Such conclusory
statements are insufficient to prove that reconsideration of the Court’s order is
warranted. Ysais v. Richardson, 603 F.3d 1175, 1180 (10th Cir. 2010). Further,
although plaintiff disagrees with the Court’s legal conclusions, he has not presented any
legal authority demonstrating that the Court’s decision was clearly erroneous. For
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While plaintiff does not indicate to which statement he refers, he urges the
Court to “re-read” the statement, which indicates that it is evidence that has already
been considered by the Court. Evidence already considered by the Court is an
improper basis for a motion to reconsider. Servants of the Paraclete, 204 F.3d at 1012.
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example, he references “the need to correct a manifest . . . injustice,” but fails to explain
what he believes was manifestly unjust about the Court’s ruling. Docket No. 74 at 4.
Plaintiff has not provided a credible basis for reconsideration.
Additionally, plaintiff’s argument that the Court overlooked a genuine issue of
material fact concerning defendants’ purported violations of RICO or COCCA is not
well-taken. In their complaint, plaintiffs exclusively raised a claim under 42 U.S.C.
§ 1983. Docket No. 6 at 6. They did not raise claims under RICO or COCCA, see id.,
and a motion for reconsideration is an improper vehicle to raise new legal arguments.
Servants of the Paraclete, 204 F.3d at 1012. Accordingly, the Court finds that plaintiff
has failed to demonstrate that reconsideration of its order granting defendants’ motion
for summary judgment is warranted.
Wherefore, it is
ORDERED that plaintiff Allen De Atley’s Motion for Reconsideration [Docket No.
74] is DENIED.

DATED November 18, 2019.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
Chief United States District Judge

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