Opinion
Civil Action No. 05-cv-00650-ZLW.
January 19, 2006
ORDER DENYING MOTION TO RECONSIDER
This matter is before the Court on the motion titled "Motion for Reconsideration of the Courts [sic] December First 2005 Order of Judgment and Dismissal as Filed Pursuant to Federal Rules of Civil Procedure Rule 59(e)" submitted pro se by Plaintiff Ralph Dean Chavez and filed with the Court on December 15, 2005. Mr. Chavez is a prisoner in the custody of the Colorado Department of Corrections (DOC) who currently is incarcerated at the Buena Vista, Colorado, correctional facility.
On July 22, 2005, Magistrate Judge Boyd N. Boland ordered Mr. Chavez within thirty days to file a second amended complaint that sued the proper parties, that complied with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure, and that showed cause why the amended complaint should not be dismissed for failure to exhaust the DOC's three-step administrative remedy procedure.
Magistrate Judge Boland warned Mr. Chavez that if he failed by the designated deadline to comply with the directives of the July 22, 2005, order, the amended complaint and the action would be dismissed without further notice. On September 26, 2005, Mr. Chavez filed a second amended complaint. In an order filed on December 1, 2005, the Court dismissed the second amended complaint.
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 postjudgment 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 December 1, 2005, dismissed the second amended complaint and the action without prejudice for Plaintiff's failure to comply with the pleading requirements of Fed.R.Civ.P. 8 and for failure to demonstrate exhaustion of the DOC's three-step administrative grievance procedure. The instant motion was filed on December 15, 2005. Plaintiff has filed the motion within ten days of the final judgment in the instant action. See Fed.R.Civ.P. 6(a). Therefore, the motion properly is filed as a motion to alter or amend the judgment 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 correctly 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. Chavez fails to demonstrate some reason why the Court should reconsider and vacate its decision to dismiss this action. The reasons for the dismissal are discussed in detail in the December 1, 2005, order and judgment. In addition, the dismissal was without prejudice. If Plaintiff wishes to pursue his claims he may do so by initiating a new action. Therefore, the motion to reconsider will be denied. Accordingly, it is
ORDERED that the motion titled "Motion for Reconsideration of the Courts [sic] December First 2005 Order of Judgment and Dismissal as Filed Pursuant to Federal Rules of Civil Procedure Rule 59(e)" submitted pro se by Plaintiff Ralph Dean Chavez and filed with the Court on December 15, 2005, and which the Court has construed liberally as filed pursuant to Fed.R.Civ.P. 59(e), is denied.