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Banks v. Katzenmeyer

United States District Court, D. Colorado

July 22, 2015

TORREY V. BANKS, Plaintiff,
CAPTAIN KATZENMEYER, STEPHANIE ENGLAR, FCF Mental Health Counselor, JERRI SCOLLARD, Acting FCF Mental Health Supervisor, C. SOARES, Assistant Warden at CSP, CAPTAIN ARGUELLO, CSP Mail Room Supervisor, SGT. CROSLEY, C/O MALEBRANCHE, and CAPTAIN QUATTLEBAUM, Defendants.



This matter is before the Court on Plaintiff’s Motion to Alter or Amend the Judgement [sic]/Reconsideration/Reargument [sic] Rule (59) Fed. [C]iv. R [#69][1] (the “First Motion”) and Plaintiff’s Motion for Relief from Judgment Rule 60 Fed.R.civ.P. [sic] [#83] (the “Second Motion” and collectively with the First Motion, the “Motions”). Defendants filed a Response [#75] to the First Motion. Plaintiff did not file a reply and his deadline to do so has elapsed.[2] Defendants have not yet filed a response to the Second Motion, but it is more efficient to address the Motions together, therefore, the Court rules on it pursuant to D.C.COLO.LCivR 7.1(d) (“Nothing in this rule precludes a judicial officer from ruling on a motion at any time after it is filed.”). The Court has reviewed the Motions, the Response, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Motions [##69, 83] are DENIED.

I. Jurisdiction

The Court has jurisdiction pursuant to 28 U.S.C. § 1331.

II. Background

A. Procedural Background

On March 4, 2015, the Court entered a lengthy Order granting Defendants’ motion to dismiss. See generally Order [#60]. In that Order the Court included a detailed recitation of the background of this case. As a result, the Court does not restate the factual background and instead incorporates the March 4, 2015 Order by reference. Below the Court briefly summarizes the procedural history of this case as it is relevant to the Motions.

In short, the Court gave Plaintiff many opportunities to amend his claims, informed Plaintiff what steps he needed to take to amend his claims, provided clarification regarding the law governing his claims, and eventually, granted Defendants’ motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Among other things, in its March 4, 2015 Order, the Court concluded

that despite being informed of how to seek leave to amend his Third Amended Complaint and despite being given multiple opportunities to amend his claims, Plaintiff did not seek leave to further amend his claims in his Response. The Court further finds that even if Plaintiff did intend the Response as a motion to amend, such motion is improper. Therefore, the Court treats the Response as a Response to Defendants’ Motion only.

Order [#60] at 7. As part of its more detailed analysis of Plaintiff’s response to the motion to dismiss, the Court explained:

The Court agrees with Defendants that to the extent the Response can be read as a motion seeking leave to amend his Third Amended Complaint, such request should be denied. First, the rules of this Court specifically explain that “[a] motion shall not be included in a response or reply to the original motion.” D.C.COLO.LCivR 7.1(d). In addition, Fed.R.Civ.P. 7(b) makes clear that “[a] request for a court order must be made by motion.” Fed.R.Civ.P. 7(b). A pro se litigant must follow the same procedural rules that govern other litigants, including the Local Rules of this Court and the Federal Rules of Civil Procedure. Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994); Pallottino v. City of Rio Rancho, 425 F.App’x 710, 713 (10th Cir. 2011) (unpublished decision) (“[T]he pro se status of [Plaintiffs] does not relieve them of their obligations to comply with procedural rules . . . .”); see also Indiana v. Edwards, 554 U.S. 164, 185 (2008) (“A pro se defendant may not . . . fail to comply with relevant rules of procedural . . . law.” (quotation marks and citation omitted)); Kennington v. U.S. Dep’t of the Treasury, 490 F.App’x 939, 942 n.1 (10th Cir. 2012) (table decision) (disregarding letter submission by pro se party that did not follow procedural rules). Second, the Court has given Plaintiff ample opportunities to amend his claims and as recently as August 21, 2014, it specifically informed him of the procedures he must follow in order to seek leave to amend. See Minute Order [#40] at 1. In response to that Minute Order Plaintiff did not seek leave to amend, instead he sought reconsideration of a prior Order entered in this case. See generally Motion to Reconsider Pursuant to Fed.R.Civ.P. Rule 60 [#47]. Accordingly, to the extent Plaintiff’s inclusion of additional factual allegations in the Response could be construed as a request to further amend the Third Amended Complaint, such request is improper and subject to denial. Further, the Court notes that the Response does not explicitly request amendment of the operative pleading, instead, it simply includes additional factual allegations. Therefore, the Court does not treat the Response as a motion. The Court addresses the inclusion of additional factual allegations in the Response in its analysis below.

Order [#60] at 10-11. When analyzing the motion to dismiss, the Court also explained that it could not consider the new factual allegations included in Plaintiff’s response to the motion to dismiss.

In his 62-page Response, Plaintiff offers a plethora of new factual allegations. See generally Response [##51, 52]. At the end of the two documents that constitute the Response, Plaintiff swears that the facts contained in the Response are true and correct. See Response [#51] at 26; Response [#52] at 20. In addition, Plaintiff attaches an affidavit signed by him, an affidavit signed by another inmate, a form titled Department of Correction[s] Administrative Segregation Privilege Level Review, a form titled Colorado Department of Corrections Offender Grievance Form, a handwritten addendum to the Response, a form titled Request for Legal Assistance, a letter dated April 11, 2013 that includes one attachment, and a letter dated July 17, 2013. Response [#52] at 22-35.
Plaintiff appears to “miscontrue[ ] the court’s function on a Rule 12(b)(6) motion, which ‘is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally sufficient to state a claim for which relief may be granted.’” Stinson ex rel. United States v. Maynard, 341 F.App’x 413, 417 (10th Cir. 2009) (unpublished decision) (quoting Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir. 2006) (emphasis in Stinson)). In Stinson, the Tenth Circuit affirmed the district court’s dismissal with prejudice of the pro se plaintiff’s claims pursuant to Fed.R.Civ.P. 12(b)(6). In doing so, the Tenth Circuit noted that absent certain exceptions, “when considering a Rule 12(b)(6) motion, “a federal court may only consider facts alleged within the complaint.’” Id. (quoting Cnty. of Santa Fe v. Pub. Serv. Co. of N.M., 311 F.3d 1031, 1035 (10th Cir. 2002)). As the Tenth Circuit indicates, there are certain ...

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