Opinion
Civil Action No. 05-cv-02398-ZLW.
February 2, 2006
ORDER DENYING MOTION TO RECONSIDER
This matter is before the Court on the document titled "Relief From Judgment Pursuant to Rule 60(a) (b)" filed by Plaintiff Lynn E. Scott on January 27, 2006. Mr. Scott is a prisoner in the custody of the Colorado Department of Corrections who currently is incarcerated at the Limon, Colorado, correctional facility. The Court must construe the document liberally because Mr. Scott 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 document will be construed liberally as a motion to reconsider, and the motion 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). 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 filed on January 13, 2006, dismissed the complaint and action as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B). The reasons for the dismissal are discussed in detail in the January 13, order. The liberally construed motion to reconsider was filed on January 27, 2006. Plaintiff has filed the liberally construed motion within ten days of the final judgment in the instant action. See Fed.R.Civ.P. 6(a). Therefore, the motion is construed as a Motion to Reconsider filed pursuant to Fed.R.Civ.P. 59(e).
Upon consideration of the entire file, the Court finds and concludes that Mr. Scott fails to demonstrate some reason why the Court should reconsider and vacate its decision to dismiss the action. Therefore, the liberally construed motion to reconsider will be denied. Accordingly, it is
ORDERED that the document titled "Relief From Judgment Pursuant to Rule 60(a) (b)" filed by Plaintiff Lynn E. Scott on January 27, 2006, is construed liberally as a motion to reconsider filed pursuant to Fed.R.Civ.P. 59(e), and is denied.