Mack v. United States of America et al

Filing 8

ORDER ENTERED: Plaintiff's motion 7 for reconsideration is treated as a motion under Fed.R.Civ.P. 59(e) and denied. Signed by Senior District Judge Sam A. Crow on 11/8/2012. (Mailed to pro se party Cedric Mack by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CEDRIC MACK,
Plaintiff,
v.

CASE NO.

12-3090-SAC

UNITED STATES OF AMERICA, dba
U.S. Marshals Service, et al.,
Defendants.
O R D E R
On August 22, 2012, the court entered an Order dismissing
this action without prejudice for failure to state facts to
support

a

claim.

plaintiff’s

Motion

The

matter

for

is

now

before

Reconsideration

the

(Doc.

court

7).

upon

Having

considered this motion, the court finds that no valid grounds
for

relief

from

the

judgment

of

dismissal

are

Rule

7.3,

motions

presented.

Accordingly, the motion is denied.
Pursuant

to

D.

Kan.

seeking

reconsideration of dispositive orders or judgments must be filed
pursuant to Fed.R.Civ.P. 59(e) or 60.

The Tenth Circuit Court

of Appeals has discussed “self-styled” motions to reconsider as
follows:
A motion for reconsideration, not recognized by the
Federal Rules of Civil Procedure, Clough v. Rush, 959
F.2d 182, 186 n. 4 (10th Cir. 1992), may be construed
in one of two ways: if filed within (28) days of the
district court’s entry of judgment, it is treated as a
motion to alter or amend the judgment under Rule

1

59(e);1 if filed more than (28) days after entry of
judgment, it is treated as a motion for relief from
judgment under Rule 60(b).
Computerized Thermal Imaging, Inc. v. Bloomberg, L.P., 312 F.3d
1292,

1296

n.

3

(10th

Cir.

2002).2

Petitioner=s

Motion

for

Reconsideration was filed within 28 days of entry of judgment in
this matter.

Accordingly, it is treated as a motion to alter or

amend judgment under Rule 59(e).
“A

motion

to

alter

or

amend

a

judgment

pursuant

to

Fed.R.Civ.P. 59(e) may be granted only if the moving party can
establish (1) an intervening change in controlling law; (2) the
availability of new evidence that could not have been obtained
previously through the exercise of due diligence; or (3) the
need

to

correct

clear

error

or

prevent

manifest

injustice.”

Wilkins v. Packerware Corp., 238 F.R.D. 256, 263 (D. Kan. 2006),
aff’d, 260 Fed.Appx. 98 (10th Cir. 2008)(citing Brumark Corp. v.
Samson Res. Corp., 57 F.3d 941, 948 (10th Cir. 1995)).
59(e)

does

not

permit

a

losing

party

to

rehash

or

Rule

restate

arguments previously addressed or to present new legal theories
or supporting facts that could have been raised earlier.

Id.

(citing Brown v. Presbyterian Healthcare Servs., 101 F.3d 1324,
1332

1

(10th

Cir.

1996),

cert.

denied,

520

U.S.

1181

(1997));

In December, 2009, Rule 59(e) was amended to change 10 days to 28 days.

2

The
Tenth
Circuit
further
explained
that
“the
distinction
is
significant because a Rule 59(e) motion tolls the thirty-day period for
appeal while a Rule 60(b) motion does not.” Id. at *2.

2

Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.
2000).

It follows that a 59(e) motion is appropriate where the

court has misapprehended the facts or the controlling law, but
“is

not

advance

appropriate
arguments

briefing.”

to

revisit

that

could

issues
have

already

been

addressed

raised

in

Servants of Paraclete, 204 F.3d at 1012.

or

prior
A 59(e)

motion is not “a second chance for the losing party to make its
strongest case or to dress up arguments that previously failed.”
Voelkel v. Gen. Motors Corp., 846 F.Supp. 1482, 1483 (D.Kan.),
aff’d, 43 F.3d 1484 (10th Cir. 1994).

In short, the court

should only grant a Rule 59(e) motion to correct manifest errors
of law or for presentation of newly discovered evidence.

See

Adams v. Reliance Standard Life Ins. Co., 225 F.3d 1179, 1186 n.
5 (10th Cir. 2000).
The court has considered Mr. Mack’s post-judgment motion,
and finds that he does not allege any intervening change in the
controlling
District

law.

Court

He

for

cites

the

an

opinion

Southern

of

District

the
of

United

States

California

that

resulted in a settlement involving the CCA and the Immigration
and

Customs

intervening

Enforcement
nor

Agency

controlling.

Nor

(ICE),
does

which
Mr.

is

Mack

neither
show

the

availability of new evidence that could not have been previously
obtained with due diligence.

Mr. Mack apparently believes there

is a need to correct clear error, but no errors of fact are even
3

alleged in his motion.
a clear error of law.

Mr. Mack mainly believes there has been
However, he does not present authority or

sufficient additional facts to show a manifest error of law or
manifest injustice.

Instead, he merely rehashes arguments he

already made and disagrees with the court’s rulings.
The reasons for this court’s dismissal upon screening and
the

legal

standards

applied

were

fully

screening order and order of dismissal.

explained

in

its

In these orders, the

court found that plaintiff failed to state a cause of action
against all the named defendants.

He disagrees with the court’s

finding that he stated no claim against the USMS; however, he
points

to

no

facts

showing

that

an

employee

of

the

USMS

participated in the acts or inaction alleged to have caused him
physical harm.

The mere fact that the USMS “placed him in the

CCA” does not establish liability of the USMS for negligent or
wrongful acts of a CCA employee.

His allegation of deliberate

indifference on the part of the USMS is completely conclusory.
Plaintiff misconstrues the court’s order as not allowing suit
against

the

federal

agency,

its

agents

and

the

CCA.

Had

plaintiff alleged facts showing the personal participation of an
employee of the USMS in the incident in question, he would be
allowed to sue the United States under the FTCA, but he did not.
With respect to the CCA employees, the court cited the recent
U.S. Supreme Court opinion, Mineci v. Pollard, 132 S.Ct. 617,
4

626

(2012),

which

indicated

that

the

remedy

against

individual employee of the CCA lies in state court.

an

Plaintiff

has failed to meet his burden of showing that the court should
alter or amend its judgment.
The

court

additionally

finds

that

plaintiff

has

not

established any of the grounds for relief under Rule 60(b).

In

any event, relief under Rule 60(b) is likewise not warranted
where, as here, all the allegations raised in this motion either
were or could have been raised in pleadings prior to dismissal.
Id.

For all the reasons set forth above and in the court’s

prior orders in this case, the court concludes that plaintiff’s
motion has no merit.
IT IS THEREFORE BY THE COURT ORDERED that plaintiff=s Motion
for

Reconsideration

(Doc.

7)

is

treated

as

a

motion

under

Fed.R.Civ.P. 59(e) and denied.
IT IS SO ORDERED.
Dated this 8th day of November, 2012, at Topeka, Kansas.

s/Sam A. Crow
U. S. Senior District Judge

5