Opinion
Civil Action No. 06-cv-01550-ZLW.
December 1, 2006
ORDER
Plaintiff Kevin J. Rezac has filed pro se on November 21, 2006, a document titled "Motion Not to Dismiss, Amended Complaint, Request for Counsel, Request for Court Intervention." The Court must construe the document liberally because Mr. Rezac 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 not to dismiss and the requests for counsel and court intervention will be denied.
On October 5, 2006, Magistrate Judge Boyd N. Boland ordered Mr. Rezac to file an amended complaint to allege personal participation and to clarify how he has exhausted administrative remedies. In an order filed on November 15, 2006, the Court dismissed this action because Mr. Rezac had failed to respond to Magistrate Judge Boland's October 5 order within the time allowed. It appears that the document filed on November 21 is Mr. Rezac's untimely response to Magistrate Judge Boland's October 5 order.
The motion not to dismiss this action and the requests for counsel and for court intervention will be denied as moot because the instant action already has been dismissed. The Court will not construe the November 21 document as a motion to reconsider the dismissal of this action because that is not what Mr. Rezac requests and, in any event, he fails to provide any basis for the Court to 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. Rezac does not allege the existence of any new law or evidence and he fails to convince the Court of the need to correct clear error or prevent manifest injustice. He did not file an amended complaint on the proper form that complies with Magistrate Judge Boland's October 5 order and he failed to communicate with the Court in any way within the time allowed for filing an amended complaint. However, Mr. Rezac is reminded that the Court dismissed the instant action without prejudice. Therefore, if he wishes to pursue his claims, he may do so by filing a new civil action. Accordingly, it is
ORDERED that the "Motion Not to Dismiss, Amended Complaint, Request for Counsel, Request for Court Intervention" filed on November 21, 2006, is denied.