Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Law v. Lilly

United States District Court, D. Colorado

April 22, 2015

DON LAW, Plaintiff,
v.
KATHY E. LILLY, #85-16, Defendants.

ORDER OF DISMISSAL

LEWIS T. BABCOCK, Senior District Judge.

On February 2, 2015, Plaintiff Don Law initiated this action by filing pro se a Notice of Intent seeking money damages for an alleged malicious arrest, false charges, and false conviction in his State of Colorado Criminal Case No. 00CR3135. See Notice, ECF No. 1, at 1. Magistrate Judge Gordon P. Gallagher entered an order on February 3, 2015 that found the Notice deficient and directed Plaintiff to file his claims on a Court-approved form used in filing prisoner complaints. On March 2, 2015, Plaintiff filed his claims on a proper Court-approved form.

This Court then reviewed the Complaint and found as follows. Plaintiff asserted six claims pursuant to 42 U.S.C. § 1983, five of which, claims Two through Six, are barred by Heck v. Humphrey , 512 U.S. 477 (1994). The Court dismissed these claims for failure to state a claim, see Hafed v. Fed. Bureau of Prisons, et al. , 635 F.3d 1172 (10th Cir. 2010) (citing Davis v. Kan. Dep't of Corr. , 507 F.3d 1246, 1248-49 (10th Cir. 2007)), but without prejudice, See Fottler v. United States , 73 F.3d 1064, 1065 (10th Cir. 2007). Regarding the remaining claim, Claim One, Plaintiff was directed to respond and show cause why the claim should not be dismissed as barred by the statute of limitations. Plaintiff filed a Response on April 13, 2015. The Response for the most part challenges the dismissal of Claims Two through Six. Plaintiff briefly on Page Thirteen, in a very conclusory manner, addresses dismissal based on "time bar."

First, the Court will address Plaintiff's challenge to the dismissal of Claims Two through Six. The Court will consider the Response in part as filed pursuant to Fed.R.Civ.P. 60(b). See McAfee v. Zupan, et al. , No. 15-cv-00039-LTB, 2015 WL 1280179 (D. Colo. Jan. 15, 2015 (citing Broadway v. Norris , 193 F.3d 987 (8th Cir. 1999) (holding that a motion for "reconsideration" that is directed to a nonfinal order as opposed to a judgment, should be construed as a Rule 60(b) motion). Rule 60(b) allows a court to grant relief from an order for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud..., misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged...; or
(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b).

Accordingly, a Rule 60(b) motion for reconsideration is appropriate where the court has misapprehended the facts, a party's position, or the controlling law. See Servants of the Paraclete v. Does , 204 F.3d 1005, 1012 (10th Cir. 2000). Moreover, "[r]elief under Rule 60(b) is extraordinary and may only be granted in exceptional circumstances." Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co. , 909 F.2d 1437, 1440 (10th Cir. 1990) (citing Ackerman v. United States , 340 U.S. 193, 199 (1950); Griffin v. Swim-Tech. Corp. , 722 F.2d 677, 680 (11th Cir. 1984)). The decision to grant relief under Rule 60(b) is discretionary; and Plaintiff has the burden to show that exceptional circumstances exist that require the Court to amend or vacate a final judgment or order . Servants of Paraclete , 204 F.3d at 1009 (emphasis added).

Plaintiff asserts in the April 13 Response that Heck v. Humphrey , 512 U.S. 477 (1994), does not apply to a § 1983 action and applies only to habeas corpus claims. Plaintiff further contends that there was no evidence to convict him and the conviction should be found to be invalid because he has been convicted in violation of his Fourteenth and Eighth Amendment rights. Plaintiff also contends that Defendants Mitchell R. Morrissey and Kerri Lombardi are not entitled to absolute immunity unless they can demonstrate that such immunity. Finally, Plaintiff appears to assert that this Court abused its discretion and dismissed Claims Two through Six without reasonable cause.

Plaintiff confuses the intent of Heck . The March 12 Order dismissed Plaintiff's claims regarding his conviction because his conviction has not been invalidated. Plaintiff first must challenge his conviction pursuant to 28 U.S.C. § 2254 and obtain an invalidation of his conviction before he is able to seek money damages in a 42 U.S.C. § 1983 action, Heck , 512 U.S. at 486-87. Also, this Court will not review Plaintiff's challenge of the validity of his state conviction ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.