Opinion
Civil Action No. 11-cv-01521-BNB
09-06-2011
ERIC ADAMS, Plaintiff, v. BLAKE R. DAVIS, and JEFF GEORGE, Defendants.
ORDER DENYING FED. R. CIV. P. 59(e) MOTION
Plaintiff, Eric Adams, is a prisoner in the custody of the United States Bureau of Prisons (BOP). He currently is incarcerated at the United States Penitentiary in Florence, Colorado. Mr. Adams filed a "Motion Pursuant to Fed. R. Civ. P. 59(e)" on August 31, 2011. In the Motion, Mr. Adams challenges the Court's Order of August 18, 2011, that denied his request to proceed pursuant to 28 U.S.C. § 1915. I must construe the Motion liberally because Mr. Adams is a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
The three major grounds that justify reconsideration are: (1) an intervening change in the controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice. See Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Upon consideration of the Rule 59(e) Motion and the entire file, the Court concludes that the Motion should be denied.
Mr. Adams, acting pro se, initiated this action by filing a "Motion Requesting Redress Under Administrative Procedure Act" and a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. In the Motion Requesting Redress, he seeks release from the segregated housing unit and placement in general population. Mr. Adams asserts that he is filing the action pursuant to 5 U.S.C. 551(1), the Administrative Procedures Act (APA). Magistrate Judge Craig B. Shaffer reviewed the Motion and entered an order instructing Mr. Adams to submit his claims on a prisoner complaint form that is used by prisoners who challenge the conditions of their confinement. Mr. Adams complied with Magistrate Judge Shaffer's order and submitted his claims on a proper Court-approved form.
On July 6, 2011, Magistrate Judge Shaffer entered an order directing Mr. Adams to show cause why he should not be denied leave to proceed pursuant to 28 U.S.C. § 1915(g) because (1) he has on three or more prior occasions, while incarcerated or detained in any facility, brought an action in a court of the United States that was dismissed on the grounds that it was frivolous or failed to state a claim; and (2) he fails to assert that he is under imminent danger of serous physical injury. Mr. Adams responded to the July 6 Order to Show Cause and argued that two of the three strikes assessed against him under § 1915(g) were improper because a dismissal as untimely is not considered as a dismissal for failure to state a claim. Mr. Adams further contended that the third strike does not count because he paid the filing fee in full. Neither of Mr. Adams arguments were found to have merit. The request for leave to proceed pursuant to § 1915 was denied, and Mr. Adams was instructed to pay the filing fee in full.
Rather than comply with the August 18 Order, Mr. Adams filed the Rule 59(e) Motion. Mr. Adams contends that because he is seeking relief under the APA § 1915(g) does not apply. Nothing under 28 U.S.C. § 1915(g) exempts a prisoner complaint filed pursuant to APA (to the extent that a claim may be asserted based solely on the APA) from the restrictions set forth in the subparagraph (g). Subparagraph (g) states in part that "[i]n no event shall a prisoner bring a civil action or proceeding under this section ..." Actions filed pursuant to the APA, therefore, are not exempt.
Mr. Adams has not asserted any of the major grounds that would justify reconsideration in his case. The Rule 59(e) Motion to reconsider will be denied. Mr. Adams must pay the full $350.00 filing fee pursuant to 28 U.S.C. § 1914(a) if he wishes to pursue his claims in this action. The Court will provide Mr. Adams additional time to submit the $350.00 filing fee, but he is warned that his failure to pay the fee within the time provided will result in the dismissal of this action without further notice. Accordingly, it is
ORDERED that ""Motion Pursuant to Fed. R. Civ. P. 59(e)," (Doc. No. 9) is DENIED. It is
FURTHER ORDERED that Mr. Adams shall have thirty days from the date of this Order to pay the entire $350.00 filing fee if he wishes to pursue his claims in this action. It is
FURTHER ORDERED that if Mr. Adams fails to pay the entire $350.00 filing fee within the time allowed, the Complaint and the action will be dismissed without further notice. It is
FURTHER ORDERED that the only proper filing at this time is the payment of the $350.00 filing fee.
DATED at Denver, Colorado, this 6th day of September, 2011.
BY THE COURT:
LEWIS T. BABCOCK, Judge
United States District Court
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
CERTIFICATE OF MAILING
Civil Action No. 11-cv-01521-BNB Eric Adams
Reg. No. 44221-053
ADX Florence
PO Box 8500
Florence, CO 81226
I hereby certify that I have mailed a copy of the ORDER to the above-named individuals on September 7, 2011.
GREGORY C. LANGHAM, CLERK
By: __________________________________
Deputy Clerk