Opinion
Civil Action No. 11-cv-00510-LTB
08-26-2011
DARREN L. NICODEMUS, Plaintiff, v. DENVER POLICE DEPT., COMCAST, DENVER HEALTH (HSS), AURORA POLICE OFFICER, LABOR READY (TERESA CRUZ), ARAPAHOE HOUSE INC., DIAMOND (VALERO) INC., 1660 LOGAN ST. SECURITY, DENVER LIBRARY SEC, and PADDOCK IMPORTS, Defendants.
ORDER DENYING MOTION TO RECONSIDER
At issue is Plaintiff Darren L. Nicodemus's Letter, Doc. No. 9, filed on August 22, 2011. The Court must construe the Letter liberally because Mr. Nicodemus 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 Court will construe the Letter as a Motion to Reconsider and deny the Motion.
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). This case was dismissed on April 18, 2011, because Mr. Nicodemus failed to comply with the Court's order to provide a properly notarized 28 U.S.C. 1915 motion and to name the same parties in both the caption and Section "Parties" of the complaint form and to provide addresses for each of the named parties. A motion to reconsider filed more than twenty-eight days after the final judgment in an action should be considered pursuant to Rule 60(b). See Id. (stating that a motion to reconsider should be construed as filed pursuant to Rule 59(e) when it is filed within the ten-day limit (limit effective prior to December 1, 2009) set forth under Rule 59(e)). Mr. Nicodemus's Letter was filed over twenty-eight days after the Court's Order of Dismissal was entered on April 18, 2011. Therefore, the Letter is construed as a Motion to Reconsider filed 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). Upon consideration of the Motion to Reconsider and the entire file, the Court finds that Mr. Nicodemus fails to demonstrate some reason why the Court should reconsider and vacate the order to dismiss this action.
In the Motion to Reconsider, Mr. Nicodemus asserts that a "clerk" at the Court told him that he would not have to submit a notarized § 1915 motion if he provided a letter to the Court explaining why he was not able to do so. Even if the Court were to accept the 28 U.S.C. § 1915 motion without being notarized, Mr. Nicodemus failed to submit a complaint form that included the addresses of the named defendants and stated the same defendants in both the caption and in Section "Parties" of the complaint form. Furthermore, this action was dismissed without prejudice. Mr. Nicodemus, therefore, may file a new action is he so desires. Accordingly, it is
ORDERED that the Letter (Doc. No. 9) filed on August 22, 2011, is construed as a Motion to Reconsider filed pursuant to Fed. R. Civ. P. 60(b) and is denied.
DATED at Denver, Colorado, this 26th day of August, 2011.
BY THE COURT:
LEWIS T. BABCOCK, Judge
United States District Court
CERTIFICATE OF MAILING
Civil Action No. 11-cv-00510-BNB
Darren L Nicodemus
Prisoner No. 2011-09777
Arapahoe County Detention Facility
PO Box 4918
Centennial, CO 80155
I hereby certify that I have mailed a copy of the ORDER to the above-named individuals on August 26, 2011.
GREGORY C. LANGHAM, CLERK
____________
Deputy Clerk