Main v. Martin

Full title: ROY J. MAIN, Plaintiff, v. CINDY MARTIN, Eye Doctor of AVCF and FCF…

Court: United States District Court, D. Colorado

Date published: Jun 26, 2006

Civil Action No. 06-cv-00232-ZLW (D. Colo. Jun. 26, 2006)

Opinion

Civil Action No. 06-cv-00232-ZLW.

June 26, 2006

ORDER DENYING MOTION TO RECONSIDER

ZITA WEINSHIENK, Senior District Judge

Plaintiff Roy J. Main has filed pro se on June 2, 2006, a document titled "Plaintiff's Motion for New Trial." Mr. Main asks the Court to reconsider and vacate the Court's Order and Judgment of Dismissal filed in this action on May 25, 2006. The Court must construe the motion to reconsider liberally because Mr. Main is proceeding pro se. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10^th Cir. 1991). For the reasons stated below, 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 (10^th Cir. 1991). Mr. Main 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 instant action without prejudice for failure to exhaust administrative remedies. The Court specifically determined that Mr. Main failed to exhaust administrative remedies with respect to his medical treatment claim. Mr. Main argues in the motion to reconsider that the Court erred in dismissing this action because the prison grievance procedure was not available to him.

Upon consideration of the motion to reconsider and the entire file, the Court finds that Mr. Main 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).

Mr. Main does not allege the existence of any new law or evidence and the Court remains convinced that Mr. Main failed to exhaust the available administrative remedies with respect to his medical treatment claim. As explained in the Order and Judgment of Dismissal, Mr. Main cannot rely on the denial of a grievance form in 1998 to justify his failure to exhaust administrative remedies regarding the alleged denial of medical care that lasted until 2004. Furthermore, the fact that damages are not available in the administrative remedy procedure also does not justify Mr. Main's failure to exhaust administrative remedies. See Booth v. Churner, 532 U.S. 731, 741 (2001). Therefore, the motion to reconsider will be denied. Accordingly, it is

ORDERED that "Plaintiff's Motion for New Trial" filed on June 2, 2006, is denied.