West v. Ortiz

Full title: ERNEST WEST, Plaintiff, v. JOE ORTIZ, Executive Director of the Colorado…

Court: United States District Court, D. Colorado

Date published: Aug 4, 2006

Civil Action No. 05-cv-00441-REB-MJW (D. Colo. Aug. 4, 2006)

Opinion

Civil Action No. 05-cv-00441-REB-MJW.

August 4, 2006

ORDER

ROBERT BLACKBURN, District Judge

On March 22, 2006, I granted defendants' motion to dismiss on the ground that plaintiff had failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). ( See Order Dismissing Plaintiff's Claims Without Prejudice for Failure to Exhaust Administrative Remedies [#59], filed March 22, 2006.) Plaintiff subsequently filed a letter with the court ([#64], filed April 27, 2006), which suggested that he might not have been incarcerated as of the date he filed this lawsuit. Because the exhaustion requirements of the PLRA only apply to prisoners who are currently incarcerated at the time suit is filed, see Norton v. City of Marietta, Oklahoma, 432 F.3d 1145, 1150-51 (10^th Cir. 2005), I construed plaintiff's letter liberally as a motion for reconsideration and afforded him an opportunity to submit evidence concerning is custodial status as of the date this lawsuit was filed. ( See Order [#69], filed May 3, 2006.) I subsequently granted plaintiff a 60-day extension of time — until July 17, 2006 — in which to comply with that order. Therein, I outlined specific examples of the types of proof that would be considered sufficient to establish the necessary facts. ( See Order Granting Motion for Extension of Time [#73], filed May 16, 2006.) I subsequently had an opportunity to remind plaintiff of the submission deadline, advise him that the factual matters on which the motion for reconsideration depended were wholly within his own knowledge, and direct him to my prior order describing specific methods by which these matters could be proved up with relative ease. ( See Order Denying Plaintiff's Motion to Reopen Case at Entry Level at District Court [#82], filed June 16, 2006.)

Nevertheless, plaintiff has failed to make the requisite showing within the time permitted by the court. I therefore find no reason to reconsider my prior order of dismissal.

THEREFORE, IT IS ORDERED that plaintiff's Letter [#64], filed April 27, 2006, construed as a motion to reconsider, is DENIED.