United States District Court, D. Colorado
ORDER ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE & DENYING MOTION TO RECONSIDER
ROBERT E. BLACKBURN, District Judge.
This matter is before me on the following: (1) the Defendant's Motion for Summary Judgment [#110] filed August 23, 2013; (2) the Plaintiff's Motion To Reconsider the District Judge's Order Concerning the Recommendation of United States Magistrate Judge [Doc. #75] [#133] filed November 7, 2013; (3) Defendant's Objections To October 15, 2013, Order (Doc. 126) [#128] filed October 29, 2013; (4) Defendant's Objections To October 15, 2013, Order (Doc. 131) [#135] filed November 12, 2013; and (5) the Recommendation of United States Magistrate Judge [#140] filed January 23, 2014, which addresses the motion for summary judgment. I approve and adopt the recommendation [#140], deny the motion to reconsider [#133], and grant the motion for summary judgment[#110]. I overrule the two objections [#128 & #135] because, following the entry of this order, they are moot.
The plaintiff is proceeding pro se. Thus, I have construed his pleadings and other filings more liberally and held them to a less stringent standard than formal pleadings drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
I. MOTION TO RECONSIDER
In his motion to reconsider [#133], the plaintiff, Robert Blackman, seeks reconsideration of the order of the court [#75] adopting a previous recommendation [#60] of the magistrate judge and dismissing some of the claims of Mr. Blackman. The magistrate judge suggested that Mr. Blackman file this motion after it became apparent to the magistrate judge that Mr. Blackman was not receiving some of the mail sent to him by the court and/or was being prevented from mailing filings to the court. As a result of irregularities in the handling of the mail of Mr. Blackman, the magistrate judge concluded that Mr. Blackman did not have an opportunity to respond to the motion to dismiss of the defendant and to object to the earlier recommendation [#60] before the recommendation was adopted by the court.
I have reviewed the motion for reconsideration [#133] as both an objection to the earlier recommendation [#60] and as a motion to reconsider. Viewing the motion as an objection, I must review de novo all portions of the recommendation [#60] to which Mr. Blackman objects. 28 U.S.C. § 636(b). I have conducted that review and have considered carefully the recommendation, objections, and applicable case law. Nothing argued by Mr. Blackman in his motion [#133] constitutes a valid objection to the recommendation [#60]. Therefore, I overrule the objections stated in the motion [#133].
Viewing the motion [#133] as a motion for reconsideration, I conclude that there is no basis for reconsideration of my previous order [#75] adopting the recommendation [#60] of the magistrate judge. The bases for granting reconsideration are limited:
Grounds warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice. Thus, a motion for reconsideration is appropriate where the court has misapprehended the facts, a party's position, or the controlling law. It is not appropriate to revisit issues already addressed or advance arguments that could have been raised in prior briefing.
Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citations omitted). FED. R. CIV. P. 60(b) outlines a related standard of review and lists six bases on which a party may seek relief from an order or final judgment.
Mr. Blackman argues in his motion that he can pursue a claim for First Amendment retaliation as a Bivens claim. The case law on this question, cited in my previous order [#75], vitiates this contention. Mr. Blackman argues also that his Fifth Amendment equal protection and due process claims and his Eighth Amendment claim were pled adequately in his complaint [#1]. As a result, he contends, the magistrate judge erred when he recommended that these claims be dismissed under FED. R. CIV. P. 12(b)(6) and I erred when I adopted those portions of the recommendation of the magistrate judge. Having reviewed again the recommendation [#60] and the complaint [#1], I find and conclude that the recommendation [#60] and my order [#75] are correct. Mr. Blackman has not cited or circumstantiated any valid grounds for reconsideration of my order [#75] or for relief under Rule 60(b). Thus, his motion must be denied.
No objections to the recommendation [#140] were filed. Thus, I review it only for plain error. See Morales-Fernandez v. Immigration & Naturalization Service, 418 F.3d 1116, 1122 (10th Cir. 2005). Finding no error, much less plain error, in the recommendation of the magistrate judge, I find and conclude that the recommendation should be approved and adopted as an order of this court.
The motion for summary judgment is based on the contention of the defendant that Mr. Blackman failed to exhaust the available administrative remedies before filing his complaint asserting a claim for First Amendment retaliation. Appropriately, the magistrate judge concludes that the undisputed facts in the record show that Mr. Blackman did not complete all three formal administrative remedy steps with regard to his First Amendment retaliation claim. As a result, this claim must be dismissed. As noted by the magistrate judge, the plaintiff now is time barred from filing a grievance on the ...