Creamer v. Larned State Hospital et al

Filing 15

MEMORANDUM AND ORDER denying 10 Creamer's Motion for Reconsideration ; and denying 11 Creamer's Amended Motion for Reconsideration. Signed by District Judge J. Thomas Marten on 1/14/2014. Mailed to pro se party Marjorie A. Creamer by regular mail. (mss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARJORIE A. CREAMER
a/k/a THE HUSH,
Plaintiff,
v.

Case No. 13-4125-JTM

LARNED STATE HOSPITAL and
HIGH PLAINS MENTAL HEALTH,
Defendant.
MEMORANDUM AND ORDER
Plaintiff Marjorie A. Creamer has filed a Motion for Reconsideration (Dkt. 10)
and Amended Motion for Reconsideration (Dkt. 11), each seeking the court to
reconsider its order dismissing the claim and entering judgment against her.
Creamer filed her complaint on October 29, 2013. The court granted her in forma
pauperis status and then entered a show cause order requiring her to set forth reasons
why her action should not be dismissed for failure to state a claim. See Dkts. 6 &7.
Specifically, the court noted that although Creamer claimed unlawful discrimination
under the Americans with Disabilities Act of 1990, she failed to “plead an area of public
life in which she was discriminated against on the basis of a disability.” Dkt. 7. The
court required Creamer to provide good cause for continuing her case by December 18.
On December 20, having received no response from Creamer, the court dismissed her
claim for failure to state a claim and entered judgment against her.

Creamer filed a notice of her appeal to the U.S. Court of Appeals for the Tenth
Circuit on December 23, 2013. Dkt. 12. She filed the motion and amended motion
currently before the court on December 24 and 26, respectively. On January 2, 2014, the
Tenth Circuit abated briefing in Creamer’s appeal until this court’s disposition of her
motion and amended motion. Dkt. 14.
Any party may file a motion asking the court to reconsider an order or decision.
D. Kan. Rule 7.3. A motion to reconsider a dispositive order must be filed pursuant to
Rule 59(e) of the Federal Rules of Civil Procedure. Id. A party seeking to alter or amend
a judgment must file the motion within twenty eight days after the entry of judgment.
Fed. R. Civ. P. 59(e). The court will not reconsider its prior judgment unless (1) there is
an intervening change in controlling law; (2) new evidence is available; or (3) there is a
need to correct clear error or prevent manifest injustice. First State Bank v. Daniel &
Associates, P.C., 491 F. Supp. 2d 1033, 1035 (D. Kan. 2007) (citing Servants of Paraclete v.
Does, 204 F.3d 1005, 1012 (10th Cir. 2000)). Reconsideration is appropriate when the
court has misapprehended the facts, the controlling law, or a party’s position. Id.
However, a motion to reconsider is not a tool to raise issues already addressed or
advance arguments that could have been raised in prior briefing. Id. Whether to grant
or deny a motion for reconsideration is committed to the court’s discretion. Marx v.
Schnuck Markets, Inc., 869 F. Supp. 895, 897 (D. Kan. 1994) (citations omitted).
Creamer has timely filed her motions to reconsider. The amended motion
appears to make some minor changes to the initial motion, so the court considers the
amended motion as superseding the initial motion. As a result, the initial motion is
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moot. Turning to the amended motion, the court finds nothing in the motion that would
justify reconsideration of its order dismissing Creamer’s claim. It merely adds
immaterial facts and does not address the defect in Creamer’s complaint identified by
the court. As a result, the court denies the amended motion.
IT IS THEREFORE ORDERED this 14th day of January, 2014, that Creamer’s
Motion for Reconsideration (Dkt. 10) and Amended Motion for Reconsideration (Dkt.
11) are denied.

s/J. Thomas Marten
J. THOMAS MARTEN, JUDGE

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