Duran, et al v. King, et al

Filing 3245

ORDER DENYING MOTION FOR RECONSIDERATION by Magistrate Judge Kirtan Khalsa. Patricio David Ortegon's Motion for Reconsideration to Proceed In Forma Pauperis on Appeal (Doc. 3244) is denied. (kmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DWIGHT DURAN et al.,
Plaintiffs,
vs.

Civ. No. 77-721 KK/SCY

MICHELLE LUJAN GRISHAM et al.,
Defendants.

ORDER DENYING MOTION FOR RECONSIDERATION
THIS MATTER is before the Court on Patricio David Ortegon’s Motion for
Reconsideration to Proceed In Forma Pauperis on Appeal (Doc. 3244) (“Motion”), filed June 10,
2020. The Court, having reviewed the Motion, the record, and the relevant law, and for the reasons
set forth below, FINDS that the Motion is not well taken and should be DENIED.
On May 21, 2020, this Court entered its Order Denying Application to Proceed In Forma
Pauperis on Appeal (Doc. 3238) (“Order Denying Application”), in which it denied Mr. Ortegon’s
Application to Proceed in District Court without Prepaying Fees or Costs (Doc. 3222)
(“Application”), which it construed as an application for leave to proceed in forma pauperis on
appeal.

The Court denied Mr. Ortegon’s Application based on Federal Rule of Appellate

Procedure 24, which requires a party seeking leave to proceed in forma pauperis on appeal to
submit an affidavit that “states the issues that the party intends to present on appeal,” Fed. R. App.
P. 24(a)(1)(C), so that the Court may determine whether the appeal is taken in good faith. See 28
U.S.C. § 1915(a)(3). In this regard, the Court noted that the burden is on the party seeking in
forma pauperis status to show that he is raising reasoned and nonfrivolous issues on appeal.
DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991); see Watkins v. Leyba, 543 F.3d

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624, 627 (10th Cir. 2008) (to be allowed to proceed in forma pauperis on appeal, appellant must
present “a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on
appeal”).
As the Court pointed out in its Order Denying Application, neither Mr. Ortegon’s Notice
of Appeal nor his Application identified any issue that he intends to raise on appeal. (See Docs.
3214, 3222.) His response (Doc. 3237) to the Court’s Order to Cure Deficiencies (Doc. 3223) in
his Application was similarly lacking, even though the Court specifically informed Mr. Ortegon
that his Application was deficient because he had failed to “state the issue(s) that he intends to
present on appeal” and gave him 30 days to cure the deficiency. (Doc. 3223 at 2-3.) In short, the
Court denied Mr. Ortegon’s Application because he never complied with Rule 24 by informing
the Court of the issues that he intends to raise on appeal, much less presented a reasoned,
nonfrivolous argument on the law and facts in support of any such issues. Fed. R. App. P.
24(a)(1)(C); Watkins, 543 F.3d at 627.
In the Motion presently before the Court, Mr. Ortegon asks the Court to reconsider its
denial of his Application. (Doc. 3244 at 1.) However, Mr. Ortegon’s Motion again fails to remedy
the fundamental deficiency that led to the denial, i.e., his failure to show that his appeal is taken in
good faith. Mr. Ortegon asks the Court to “elaborate on what specific issue(s) that [he] need[s] to
raise.” (Id. at 2.) However, the Court cannot act as Mr. Ortegon’s advocate. Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005); Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). And, the Court cannot discern from his submissions any reasoned,
nonfrivolous argument on the law and facts in support of any issues he intends to raise on appeal.
In his Motion, Mr. Ortegon characterizes the parties’ Second Revised Settlement
Agreement (“SRSA”) as a “euphemistic term for Reckless Human Endangerment,” alleges that

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overcrowding has caused 18 cases of and one death from COVID-19 at the Otero County Prison
Facility, contends that the SRSA violates the Uniform Commercial Code, and references two state
court cases and his objections to the SRSA. (Doc. 3244 at 2.) Even construing his pro se Motion
liberally to incorporate his objections (Doc. 3111) by reference, Hall, 935 F.2d at 1110, the Court
is unable to find in these allegations any reasoned, nonfrivolous basis for Mr. Ortegon’s appeal.
Mr. Ortegon’s Motion will therefore be denied. See also Servants of Paraclete v. Does, 204 F.3d
1005, 1012 (10th Cir. 2000) (“[A] motion for reconsideration is appropriate where the court has
misapprehended the facts, a party's position, or the controlling law. . . . It is not appropriate to
revisit issues already addressed or advance arguments that could have been raised in prior
briefing.”).
IT IS THEREFORE ORDERED that Patricio David Ortegon’s Motion for Reconsideration
to Proceed In Forma Pauperis on Appeal (Doc. 3244) is DENIED.
IT IS SO ORDERED.

____________________________________
KIRTAN KHALSA
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent 

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