Opinion
Civil Action No. 06-cv-01199-ZLW.
September 5, 2006
ORDER DENYING MOTION FOR RECONSIDERATION
Applicant Michael S. Elkins filed pro se on August 25, 2006, a motion seeking reconsideration of the order and judgment of dismissal filed on August 9, 2006, in the instant action. The Court must construe the motion liberally because Mr. Elkins is proceeding pro se. See Haines v. Kerner , 404 U.S. 519, 520-21 (1972); Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991). For the reasons stated below, the motion for reconsideration will be denied.
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 motion to reconsider filed within ten days after the judgment will be considered pursuant to Rule 59(e). See id. A motion to reconsider filed more than ten days after the final judgment in an action should be considered pursuant to Rule 60(b). See id. at 1243. Mr. Elkins' motion, which was filed more than ten days after the Court's order and judgment of dismissal entered on August 8, 2006, and filed on August 9, 2006, will be considered pursuant to Fed.R.Civ.P. 60(b). Relief under Rule 60(b) is appropriate only in extraordinary circumstances. See Massengale v. Oklahoma Bd. of Examiners in Optometry , 30 F.3d 1325, 1330 (10th Cir. 1994).
The Court denied Mr. Elkins' amended application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 and dismissed the action as meritless. The basis for the dismissal is explained in detail in the dismissal order filed on August 9, 2006.
Upon consideration of the motion to reconsider and the entire file, the Court finds that Mr. Elkins fails to demonstrate the existence of any extraordinary circumstances that would justify a decision to reconsider and vacate the order dismissing this action. Therefore, the motion for reconsideration will be denied. Accordingly, it is
ORDERED that the motion for reconsideration submitted pro se by Applicant Michael S. Elkins seeking reconsideration of the order and judgment of dismissal filed on August 9, 2006, and which the Court has construed liberally as a motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, is denied.