Opinion
Civil Action No. 07-cv-02031-ZLW.
November 30, 2007
ORDER DENYING MOTION TO RECONSIDER
Applicant Eric Lynn Soeken has filed pro se on November 21, 2007, a document titled "Order to Correct Clerical Error" in which he apparently asks the Court to reconsider the Court's Order of Dismissal filed in this action on November 8, 2007. The Court must construe the document liberally because Mr. Soeken is representing himself. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Therefore, the document will be construed liberally as a motion to reconsider. 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 (10th Cir. 1991). Mr. Soeken filed his motion to reconsider within ten days after the Court's Order of Dismissal. See Fed.R.Civ.P. 6(a) (time periods of less than eleven days exclude intervening Saturdays, Sundays, and legal holidays). 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 because Mr. Soeken failed to cure the deficiencies. On September 28, 2007, Magistrate Judge Boyd N. Boland entered an order directing Mr. Soeken to file his habeas corpus application and motion seeking leave to proceed in forma pauperis on the proper forms within thirty days. In an order filed on November 8, 2007, the Court dismissed the instant action without prejudice because Mr. Soeken failed to cure the deficiencies and he failed to respond to Magistrate Judge Boland's order in any way. Mr. Soeken alleges in his motion to reconsider that he did not cure the deficiencies in this action because he was unaware of those deficiencies. He contends that, although he received a copy of the certificate of mailing attached to Magistrate Judge Boland's September 28 order, he did not receive any of the documents specified in the certificate of mailing.
Upon consideration of the motion to reconsider and the entire file, the Court finds that Mr. Soeken fails to demonstrate some reason why the Court should reconsider and vacate the order to dismiss this action. The Court's records indicate that a copy of Magistrate Judge Boland's September 28 order and the forms specified in that order were mailed to Mr. Soeken. Even assuming Mr. Soeken did not receive a copy of the order and specified forms as he alleges, he provides no explanation for his failure to inquire about the missing order and forms. At the very least, the certificate of mailing that Mr. Soeken admits he received placed him on notice that the Court had entered an order in this action. Mr. Soeken's failure to take any steps to discover the nature of that order undercuts his contention that the dismissal of this action resulted from a clerical error attributable to the clerk of the Court. Therefore, the motion to reconsider will be denied. Mr. Soeken is reminded that, because the instant action was dismissed without prejudice, he may pursue his claims by filing a new action if he chooses. Accordingly, it is
ORDERED that the "Order to Correct Clerical Error" filed on November 21, 2007, which the Court has construed liberally as a motion to reconsider, is denied.