Opinion
Civil Action No. 07-cv-00772-ZLW.
July 26, 2007
ORDER DENYING MOTION TO RECONSIDER
Plaintiff Vincent George Kouris, a state prisoner, filed a request for forms to file an appeal on July 10, 2007. He also included in the request a statement regarding why his Complaint and action should not be dismissed. The Court, therefore, will construe the July 10, 2007, filing, in part, as a Motion to Reconsider. The Court must construe the Motion to Reconsider liberally because Mr. Kouris 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, however, the Motion to Reconsider 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). Mr. Kouris filed the Motion to Reconsider within ten days after the Order and Judgment of Dismissal. Therefore, the Court will consider the Motion to Reconsider pursuant to Rule 59(e). See Van Skiver , 952 F.2d at 1243.
The Court dismissed the Complaint and the instant action without prejudice because Plaintiff failed either to pay a $1.00 initial partial filing fee or in the alternative to show cause why he has no assets and no means by which to pay the initial fee within the time allowed. In the June 29, 2007, Order of Dismissal, the Court stated on Page Two of the Order that Plaintiff had failed to communicate with the Court within the time allowed and as a result had failed to comply with Magistrate Judge Boland's May 18, 2007, Order. Contrary to the Court's finding that no communication had been received, the Court finds that indeed on June 25, 2007, Plaintiff filed a document titled, "Motion to Notify the Court why Plaintiff can not Pay Filing Fee." Attached to the Motion is a certified copy of Plaintiff's account statement.
In the Motion to Notify, Plaintiff states that it is difficult to obtain a six-month statement, that he has tried to mail a money order to the Court on several occasions, and that his $1.00 money order was held from May 20, 2007, until June 18, 2007, by prison officials. Nonetheless, the Court finds that Mr. Kouris fails to demonstrate some reason why the Court should reconsider and vacate the order to dismiss this action. The three major grounds that justify reconsideration are: (1) an intervening change in controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice. See Shields v. Shetler , 120 F.R.D. 123, 126 (D. Colo. 1988).
Based on the May 18, 2007, Order, Mr. Kouris knew that by June 18, 2007, he was required either to pay the initial partial filing fee or show cause why he lacked sufficient funds or means to do so. He, however, did not sign and date the Motion to Notify until June 20, 2007. Furthermore, the account statement, dated June 21, 2007, that Plaintiff attached to the Motion to Notify, indicates that he had sufficient funds to pay the $1.00 fee at that time. The Court also notes that Plaintiff asserts the money order was held from May 20, 2007, until June 18, 2007. Plaintiff does not assert, however, that the money order continued to be held by prison staff beyond June 18, 2007, and the Court did not receive prior to the June 29, 2007, dismissal, or even now, a payment.
Mr. Kouris does not allege the existence of any new law or evidence, and the Court remains convinced that Mr. Kouris failed within the time allowed either to submit the $1.00 initial partial filing fee or in the alternative to file a properly certified copy of his trust fund account statement showing why he has no assets or means to pay the initial partial filing fee. Therefore, the Motion to Reconsider will be denied. Plaintiff is reminded that because the Complaint and the action were dismissed without prejudice, he may pursue his claims if he so wishes by initiating a new lawsuit. Accordingly, it is
ORDERED that Plaintiff's request for documents, filed July 10, 2007, is construed in part as a Motion to Reconsider filed pursuant to Fed.R.Civ.P. 59(e) and is denied.