United States District Court, D. Colorado
ORDER GRANTING MOTION FOR RECONSIDERATION
LEWIS T. BABCOCK, Senior Judge United States District Court.
Plaintiff, Brian Hicks, is in the custody of the Federal Bureau of Prisons and is currently incarcerated at the McCreary United States Penitentiary in Pine Knot, Kentucky. On May 14, 2015, Plaintiff filed pro se a Motion for Reconsideration (ECF No. 23). In the motion, Plaintiff asks the Court to reconsider and vacate the Order of Dismissal (ECF No. 21) and the Judgment (ECF No. 22) entered in this action on April 13, 2015. The Court must construe the motion to reconsider liberally because Mr. Hicks is not represented by an attorney. 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 discussed below, the motion to reconsider will be granted.
Plaintiff initiated this action on October 20, 2014, by filing pro se a Complaint pursuant to 28 U.S.C. §§ 1331 and 1332 seeking money damages and declaratory relief for Defendants’ alleged failure to comply with the Stored Communications Act (“SCA”), 18 U.S.C. §§ 2701, et seq. Specifically, Mr. Hicks asserts that Defendants violated the SCA by knowingly failing to preserve and produce cell tower records after receiving legal requests for the information from law enforcement. (ECF No. 9-1 at ¶¶ 9, 43, 49). He further alleges that by failing to comply with the SCA, Defendants knowingly prevented him from obtaining these records and effectively prevented him from using key evidence that would have acquitted him of murder charges; as such, he alleges that Sprint Nextel infringed upon his rights under both the Colorado and the United States Constitutions. (ECF No. 9-1 at ¶ 23, 41).
The Court initially reviewed the Complaint under D.C.ColoLCiv.R. 8.1(a) and (b) and, on October 24, 2014, entered an order directing Mr. Hicks to cure certain enumerated deficiencies within thirty days. (ECF No. 4). The October 24, 2014 Order pointed out that Mr. Hicks had not paid a filing fee and had failed to submit a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. Id. On November 21, 2014, instead of filing a completed § 1915 motion and affidavit, Mr. Hicks paid the full $400.00 filing fee. (ECF No. 6).
The October 24, 2014 Order also directed Mr. Hicks to show cause why the Complaint and action should not be dismissed because he failed to allege an adequate basis to invoke this Court’s subject matter jurisdiction. (ECF No. 4). On December 3, 2014, the Court dismissed the Complaint and action for lack of subject matter jurisdiction because Mr. Hicks failed to comply with the October 24, 2014 Order to Show Cause as directed. (ECF No. 7).
Subsequently, on December 8, 2014, Mr. Hicks’ “Motion to Amend Complaint” (ECF No. 9), “Renewed Ex Parte Motion to Take Expedited Discovery” (ECF No. 10), and “Response to Order to Cure Deficiencies and Show Cause” (ECF No. 11) were filed. On January 5, 2015, Mr. Hicks filed a “Motion for Reconsideration, ” arguing that the action should not have been dismissed because his response to the October 24, 2014 Order to Show Cause was timely filed under the prison mailbox rule. (ECF No. 13). On January 8, 2015, the Court granted the motion for reconsideration, and reinstated the case. (ECF No. 14).
On February 4, 2015, the Court issued an Order to Show Cause as to why the action should not be dismissed as time-barred. (ECF No. 16). On March 12, 2015, Mr. Hicks filed a Response to the Order to Show Cause (ECF No. 19), as well as a Second Motion to Amend (ECF No. 20).
On April 13, 2015, the Court dismissed the action with prejudice as barred by the statute of limitations, and denied the remaining outstanding motions as moot. (ECF No. 21 at 8). A judgment was entered the dame day. (ECF No. 22).
On May 14, 2015, Plaintiff filed a Motion for Reconsideration. (ECF No. 23). Mr. Hicks asserts two reasons why his motion to reconsider should be granted: (1) “The court did not have authority to screen and summarily dismiss Mr. Hicks’ civil action under 28 U.S.C. § 1915" (ECF No. 23 at 4); and (2) “the Court applied the wrong legal standard in determining the accrual of Mr. Hicks’ claims” (ECF No. 23 at 6).
The Court is persuaded by Mr. Hicks’ argument that it did not have authority to screen and summarily dismiss his civil action under § 1915.
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). A motion to alter or amend the judgment must be filed within twenty-eight days after the judgment is entered. See Fed. R. Civ. P. 59(e). A motion to reconsider filed more than twenty-eight days after the final judgment in an action should be considered filed pursuant to Rule 60(b). See Van Skiver, 952 F.2d at 1243 (stating that a motion to reconsider should be construed as filed pursuant to Rule 59(e) when it is filed within the limit set forth under Rule 59(e)).
In this case, Plaintiff’s Motion to Reconsider was docketed on May 14, 2015, thirty-one days after a final judgment was entered dismissing this action on April 13, 2015. However, the Motion to Reconsider is dated May 8, 2015. (See ECF No. 23 at 17). In light of the Court’s obligation to pro se litigants, as well as in consideration of the obstacles inherent in sending mail through the prison system, the Court accepts the Motion to Reconsider as filed under the Rule 59(e) deadline and will consider the Motion pursuant to Fed.R.Civ.P. 59(e). See Van Skiver, 952 F.2d at 1243; see also Hall, 935 F.2d at 1110 (“A pro se litigant’s pleadings are to be construed liberally and held to a less ...