Opinion
Civil Action No. 06-cv-00545-ZLW.
July 3, 2006
ORDER DENYING MOTION TO RECONSIDER
This matter is before the Court on the untitled document submitted pro se by Plaintiff Tony Powell and filed with the Court on June 5, 2006. Mr. Powell asks to reopen the instant action. Mr. Powell is a prisoner in the custody of the United States Bureau of Prisons who currently is incarcerated at the United States Penitentiary, High Security, in Florence, Colorado.
The Court must construe the document liberally because Mr. Powell 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). The document Mr. Powell submitted to the Court on June 5, 2006, will be treated as seeking reconsideration of the order and judgment filed in this action on May 25, 2006. For the reasons stated below, the liberally construed motion to reconsider will be denied.
The Court dismissed the instant action without prejudice for failure to cure because Mr. Powell never submitted a complaint as directed in the March 27, 2006, order to cure. The reasons for the dismissal are explained in greater detail in the order and judgment of dismissal filed on May 25, 2006.
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 and judgment of dismissal filed on May 25, 2006, dismissed the action without prejudice, entered judgment in favor of Defendants and against Plaintiff, and denied as moot the pending application for a temporary restraining order.
The liberally construed motion to reconsider was filed on June 5, 2006. 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 application 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). See Van Skiver, 952 F.2d at 1244.
Upon consideration of the entire file, the Court finds and concludes that Mr. Powell fails to demonstrate some reason why the Court should reconsider and vacate its decision to dismiss this action. Therefore, the motion to reconsider will be denied. Accordingly, it is
ORDERED that the untitled document submitted pro se by Plaintiff Tony Powell and filed with the Court on June 5, 2006, and which the Court has construed liberally as filed pursuant to Fed.R.Civ.P. 59(e), is denied.