Opinion
Civil Action No. 06-cv-00759-BNB.
August 21, 2006
ORDER DENYING MOTION TO RECONSIDER
Plaintiff Michael Whitington filed pro se on August 15, 2006, two motions titled "Motion to Accep [sic] Motion to Amend Judgment Pursuant to Rule 59(e) F.R.C.P. With Deficient Copies and Without the Attached Exhibits" and "Motion to Amend Judgement [sic] Pursuant to Rule 59(e) F.R.C.P." The motion to accept the motion to amend will be denied as unnecessary. In the motion to amend, Mr. Whitington asks the Court to reconsider and vacate the Court's Order and Judgment of Dismissal entered on August 3, 2006, and filed on August 4, 2006. The Court must construe the motion to amend liberally because Mr. Whitington 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 to amend will be construed liberally as a motion to reconsider, and 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. Whitington filed the liberally construed motion to reconsider within ten days after the Order and Judgment of Dismissal filed on August 4, 2006. 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 complaint and the instant action without prejudice for failure to show cause why the amended complaint should not be dismissed for failure to exhaust the Colorado Department of Corrections' (DOC) three-step, administrative-remedy procedure. The reasons for the dismissal are discussed in detail in the August 4, 2006, dismissal order. Mr. Whitington contends that the amended complaint he submitted on July 17, 2006, was not considered by the Court.
The Court has reviewed the amended complaint Mr. Whitington filed on July 17, 2006, and has determined that nothing in the July 17 amended complaint changes the fact that Mr. Whitington failed to exhaust DOC administrative remedies as to each of his claims prior to initiating the instant action.
Upon consideration of the motion to reconsider and the entire file, the Court finds that Mr. Whitington fails to demonstrate some reason why the Court should 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. Whitington does not allege the existence of any new law or evidence, and the Court remains convinced that Mr. Whitington failed to exhaust DOC administrative remedies prior to initiating the instant lawsuit. Therefore, the motion to reconsider will be denied. If Mr. Whitington wishes to pursue his claims, he may do so after exhausting the DOC's grievance process as to each of his claims. Accordingly, it is
ORDERED that the "Motion to Accep [sic] Motion to Amend Judgment Pursuant to Rule 59(e) F.R.C.P. With Deficient Copies and Without the Attached Exhibits" submitted pro se by Plaintiff Michael Whitington and filed with the Court on August 15, 2006, is denied as unnecessary. It is
FURTHER ORDERED that the motion titled "Motion to Amend Judgement [sic] Pursuant to Rule 59(e) F.R.C.P." submitted pro se on August 15, 2006, by Plaintiff Michael Whitington, and which the Court has treated as a motion to alter or amend the judgment pursuant to Fed.R.Civ.P. 59(e), is denied.