Opinion
Civil Action No. 06-cv-00347-BNB.
July 3, 2006
ORDER DENYING MOTION TO RECONSIDER
This matter is before the Court on Plaintiff Edwin Mark Ackerman's "Appeal of the Court[']s Decision" and Letter filed with the Court on June 7, 2006. Mr. Ackerman is incarcerated at the Colorado Department of Corrections and currently is held at the Fremont Correctional Facility. On February 17, 2006, Mr. Ackerman submitted to the Court a Complaint filed pursuant to 42 U.S.C. § 1983. Subsequently on April 13, 2006, Magistrate Judge Boyd N. Boland granted Plaintiff leave to proceed pursuant to 28 U.S.C. § 1915 and directed him to pay a $5.00 initial partial filing fee.
On April 19, 2006, the April 13 Order was returned to the Court and the envelope was marked, "Return to Sender Refused Unable to Forward." The April 13 Order was sent to the address provided by Plaintiff. Because the April 13 Order was returned to the Court marked "Refused," and because Plaintiff failed to comply with the April 13 Order within the time required, the Court dismissed the Complaint and action on May 25, 2006.
In the Appeal, Plaintiff requests that the Court reinstate his Complaint. He asserts that he did not receive Magistrate Judge Boland's April 13 Order, but if he had he would have complied with the Order.
A litigant subject to an adverse judgment, and who seeks reconsideration by the district court of that adverse judgment, may "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). A post-judgment motion filed within ten days of a final judgment should be construed as a Rule 59(e) motion. Id.; see also Dalton v. First Interstate Bank, 863 F.2d 702, 703 (10th Cir. 1988). A motion to reconsider filed more than ten days after the final judgment in an action should be considered pursuant to Rule 60(b). Van Skiver, 952 F.2d at 1243.
Final decisions are those that end the litigation on the merits and leave nothing for the district court to do except execute the judgment. Van Cauwenberghe v. Biard, 486 U.S. 517, 521-22 (1988); In re Durability, Inc., 893 F.2d 264, 265 (10th Cir. 1990). "It is well settled that an order dismissing the action . . . is a final judgment." Sherr v. Sierra Trading Corp., 492 F.2d 971, 978 (10th Cir. 1974). The Order filed on May 25, 2006, dismissed the Complaint and action without prejudice for failure to pay the initial partial filing fee. The instant Appeal and Letter were filed on June 7, 2006. Plaintiff has filed the Appeal and Letter within ten days of a final judgment in the instant action. See Fed.R.Civ.P. 6(a). Therefore, the Court will construe the Appeal and Letter liberally as a Motion to Reconsider filed pursuant to Fed.R.Civ.P. 59(e).
A motion to reconsider that reiterates issues originally raised in the complaint and that seeks to challenge the legal correctness of the court's judgment by arguing that the district court misapplied the law or misunderstood the litigant's position properly is asserted pursuant to Fed.R.Civ.P. 59(e). Van Skiver, 952 F.2d at 1244.
Upon consideration of the entire file, the Court finds and concludes that Mr. Ackerman fails to demonstrate some reason why the Court should reconsider and vacate its decision to dismiss this action. It appears that Plaintiff contends he did not receive the April 13, 2006, Order because of errors committed by the postal service at the facility where he is held. Nonetheless, the envelope in which the April 13, 2006, Order was sent is marked "Refused." Furthermore, Plaintiff had no problem in receiving the Court's May 25, 2006, Order dismissing the Complaint and action. Therefore, the Motion to Reconsider will be denied.
The Complaint and action were dismissed without prejudice. Plaintiff may elect to file a new action with the Court. Accordingly, it is
ORDERED that Plaintiff's Appeal of the Court's Decision and Letter, filed June 7, 2006, are construed as a Motion to Reconsider, pursuant to Fed.R.Civ.P. 59(e). It is
FURTHER ORDERED that the Motion to Reconsider is denied. It is
FURTHER ORDERED that Plaintiff's request for a copy of the Prisoner Complaints he has filed with the Court is granted. It is
FURTHER ORDERED that the Clerk of the Court shall send to Plaintiff copies of the Prisoner Complaints that he filed on February 28, 2006, March 27, 2006, and April 10, 2006. It is
FURTHER ORDERED that the Clerk of the Court shall send to Plaintiff two copies of a Prisoner Complaint form and two copies of a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 form for use in filing a new action if he so desires. It is
FURTHER ORDERED that Plaintiff shall refrain from sending an initial partial filing fee until directed to do so by the Court in a new action.