Rivera v. Granillo

Filing 26

ORDER denying 25 Motion Objecting to Order Granting inPart and Denying in Part Defendants Motion to Dismiss, by Magistrate Judge Kathleen M. Tafoya on 5/7/2018. (jgonz, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 17–cv–01667–KMT
RODOLFO RIVERA, JR.,
Plaintiff,
v.
OFFICER JOHN GRANILLO/CSPD 3876,
Defendant.

ORDER

This matter comes before the court on Plaintiff’s “Motion Objecting to Order Granting in
Part and Denying in Part Defendant’s Motion to Dismiss” (Doc. No. 25, filed May 1, 2018).
Plaintiff apparently seeks this court’s reconsideration of its Order (see Doc. No. 24)
dismissing Plaintiff’s claims in part. “The Federal Rules of Civil Procedure do not recognize a
‘motion to reconsider.’ Instead the rules allow a litigant subject to an adverse judgment to 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). Fed. R. Civ. P. 59(e) governs when the motion for
reconsideration is filed within ten days of the judgment; Fed. R. Civ. P. 60(b) governs all other
motions. Id. Plaintiff filed his Motion on May 1, 2018, seven days after the court’s order on
Defendant’s Motion to Dismiss (Doc. No. 24). Therefore, the court will consider Plaintiff’s
request for review pursuant to Rule 59(e). See id.

There are three major grounds that justify reconsideration: (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 Rule 59(e) motion to alter or amend 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).
Plaintiff argues, citing the same case law he cited in his response to the Motion to
Dismiss, that “[t]he exhibits show that the information on the arrest warrant was unreliable and
that the victim had perjured herself by making a false police report, and a reasonable officer
would not have accepted false evidence as truth.” (Doc. No. 25 at 4.) However, Plaintiff does
not argue that there has been an intervening change in the law, that new evidence has been made
available, or that there is a need to correct clear error or to prevent injustice. Moreover, Plaintiff
fails to demonstrate that the court misapprehended the facts, his position, or the controlling law.
Accordingly, it is
ORDERED that Plaintiff’s “Motion Objecting to Order Granting in Part and Denying in
Part Defendant’s Motion to Dismiss” (Doc. No. 25) is DENIED.
Dated this 7th day of May, 2018.

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