Klaudt v. Dooley et al

Filing 12

ORDER DISMISSING CASE denying 10 Motion for Reconsideration ; denying 11 Motion for Reconsideration. Signed by U.S. District Judge Karen E. Schreier on 3/6/17. (SLW)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
TED ALVIN KLAUDT,

3:16-CV-03047-KES

Petitioner,
vs.
ROBERT DOOLEY, Warden of Mike
Durfee State Prison;
LAWRENCE LONG, Former S.D.
Attorney General;
PATRICIA J. DEVANEY, Former
Assistant S.D. Attorney General,

ORDER DISMISSING CASE

Respondents.

Plaintiff, Ted Alvin Klaudt, is an inmate at Mike Durfee State Prison. On
December 5, 2016, he filed a petition for writ of habeas corpus under 28 U.S.C.
§ 2241(c)(3)(d), Docket 1, which the court dismissed. Docket 7. Klaudt now
moves the court to reconsider through two motions making the same
argument. Docket 10; Docket 11.
The federal rules do not recognize a motion to reconsider. A litigant
seeking reconsideration must file a motion to alter or amend
judgment pursuant to Fed. R. Civ. P. 59(e), or a motion seeking
relief from judgment under Fed. R. Civ. P. 60(b). A Rule 59(e)
motion must be filed within ten days of the entry of judgment, and
if timely, it tolls the time for filing the notice of appeal under Fed.
R.App. P 4(a)(4). A motion for reconsideration filed after the ten-day
period is construed as a motion seeking relief from judgment under
Rule 60(b).

Ysais v. Richardson, 603 F.3d 1175, 1178 n.2 (10th Cir. 2010) (citing Van
Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991).
Klaudt does not explain why he should be granted relief under either
Rule 59 or 60, but merely argues that the court should not have dismissed his
petition. He cites White v. Lambert, 370 F.3d 1002, 1004 (9th Cir. 2004)
overruled on other grounds by Hayward v. Marshall, 603 F.3d 546 (9th Cir.
2010), and Montez v. McKinna, 208 F.3d 862, 864 (10th Cir. 2000) to support
his motion. These cases involve defendants challenging the decision to transfer
them from one prison to another, not challenging the validity of their state
court convictions. Therefore, they are inapplicable to Klaudt’s case.
Thus, it is ORDERED
1. Klaudt’s motion for reconsideration (Docket 10) is denied.
2. Klaudt’s motion for reconsideration (Docket 11) is denied.
Dated March 6, 2017.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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