United States District Court, D. Colorado
NINA Y. WANG UNITED STATES MAGISTRATE JUDGE.
This civil action is before the court on Defendants Charles Alvarez, R. Giconi, and J. Garner’s Motion for Reconsideration. [#27, filed March 9, 2015]. This matter was referred to the undersigned Magistrate Judge pursuant to the Order Referring Case dated February 20, 2015 [#26] and the memorandum dated March 10, 2015 [#30]. This court has carefully considered the Motion, Plaintiff’s filings, the entire case file, and the applicable case law. For the reasons stated below, the Motion is GRANTED and Plaintiff is directed to remit the filing fee if he wishes to pursue the claims raised in this action.
Plaintiff Antoine Bruce (“Plaintiff” or “Mr. Bruce”) is in the custody of the Federal Bureau of Prisons and currently is incarcerated at the United States Administrative Maximum Penitentiary in Florence, Colorado. On November 26, 2014, Plaintiff initiated this action by filing pro se a Prisoner Complaint. [#1]. On January 25, 2015, the court granted Plaintiff leave to proceed pursuant to 28 U.S.C. § 1915. [#11].
Defendants filed the pending Motion for Reconsideration on March 9, 2015, asking the court to reconsider its Order allowing Plaintiff to proceed in forma pauperis on the basis that Plaintiff has accrued “three strikes” in prior litigation, as defined under 28 U.S.C. § 1915(g). [#27]. Plaintiff filed a Motion for Appointment of Counsel on April 1, 2015. [#35].
Upon review of the instant Motion, the court confirmed that Plaintiff is subject to filing restrictions pursuant to 28 U.S.C. § 1915(g). This court thereafter issued an Order to Show Cause, vacating the January 25, 2015 Order granting Plaintiff leave to proceed pursuant to § 1915 and directing Plaintiff to show cause, on or before May 1, 2015, why he should not be denied leave to proceed pursuant to 28 U.S.C. § 1915 because: (1) he has, on three or more prior occasions, while incarcerated or detained in any facility, brought an action in a court of the United States that was dismissed on the grounds that it is frivolous or failed to state a claim; and (2) he fails in the Amended Complaint to establish that he is under imminent danger of serious physical injury (“Order to Show Cause”). [#37].
One week later, on April 13, 2015, Plaintiff filed an “Emergency Notification and Motion for Help, ” which the court interpreted as a Motion to Stay the action (“Motion to Stay”). [#38]. Attached to the Motion to Stay are two exhibits from a criminal matter before another court in this District in which Mr. Bruce is the named Defendant. See U.S. v. Antoine Bruce, 1:14-cr-00480-WYD (D. Colo.) (“Criminal Matter”). The exhibits indicated that Mr. Bruce had moved, through his counsel in that matter, for a competency evaluation at a neutral medical facility. [#38 at 5]. In the Motion to Stay, Mr. Bruce asked the court to stay this action until his Motion for Appointment of Counsel pending before the undersigned was determined or until his competency was decided in the Criminal Matter. [#38]. Plaintiff then filed an “Emergency Motion” on April 20, 2015, in which he stated generally that he has been “sexually assaulted and refused his medications by Defendants, agents, and all those in concert and participation with them, ” and “is in imminent danger of serious and irreparable injury/harm.” [#40 at 1].
On April 28, 2015, this court held a Status Conference at which the undersigned directed Plaintiff to file a response to the Order to Show Cause, directed Defendants to file a response to the Motion to Stay, and discussed the timeline for completion of Plaintiff’s competency examination. [#45]. On May 4, 2015, Defendants filed a Response to the Motion to Stay, stating they took no position as to the relief requested. [#46]. This court then issued an Order in which it denied the Motion for Appointment of Counsel “with leave to refile only upon facts that were not presented” in that Motion, denied the Emergency Motion on the basis that it “set forth no discernible request for relief that is within this court’s jurisdiction except a request for appointment of counsel, ” and granted the Motion to Stay “pending the outcome of Plaintiff’s competency hearing in Criminal Case No. 14-cr-00480.” [#47].
To date, this court has no indication that Plaintiff has undergone a competency evaluation. On September 3, 2015, Plaintiff filed a “Notification to the Courts in Conjunction With Motion to Expedite Status Conference and Strike” (“Notification”). [#53]. On November 13, 2015, Plaintiff filed a Motion to Compel. [#57]. On November 17, 2015, based on Plaintiff’s continued and affirmative action-despite his previously requested stay-this court directed Plaintiff to file “a notice on or before December 4, 2015 should he object to the court vacating the stay currently imposed in this matter and proceeding with the administration of this case prior to the outcome of a competency hearing.” [#60]. On November 30, 2015, Plaintiff filed an “Emergency Notice to the Court and Motion for (TRO) and/or Preliminary Injunction, In Conjunction with Motion for Appointment of Counsel, ” in which he stated his lack of objection to the court lifting the stay. [#61]. Therefore, this court concludes that the appropriate course of action at this time is to VACATE the current stay and proceed with its consideration of the Motion for Reconsideration filed by Defendants.
The Federal Rules of Civil Procedure do not expressly provide for a motion for reconsideration. Because the United States seeks reconsideration of a non-final order, its motion falls within the plenary power of the court to revisit and amend interlocutory orders when justice so requires. Zeller v. Ventures Trust 2013-I-NH, No. 15-cv-01077-PAB-NYW, 2015 WL 4743191, at *1 (D. Colo. Aug. 11, 2015); see also Fed. R. Civ. P. 54(b) (“[A]ny order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.”). Courts in this district have applied different standards on motions for reconsideration of non-final orders. United Fire & Cas. Co. v. Boulder Plaza Residential, LLC, No. 06-cv-00037-PAB-CBS, 2010 WL 420046, at *3 (D. Colo. Feb. 1, 2010) (listing cases applying Rule 59(e) standard, Rule 60(b) standard, and “law of the case” standard). Nonetheless, the prevailing approach demonstrates that courts consider whether new evidence or legal authority has emerged or whether the prior ruling was clearly in error. See James v. Dunbar, No. 09-cv-02479-PAB, 2010 WL 3834335, at *1 (D. Colo. Sep. 27, 2010).
In relevant part, § 1915 provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g). Review of the court records attached to the Motion for Reconsideration indicates that Plaintiff, on three or more occasions, has brought an action that was dismissed on the grounds that it failed to state a claim or was frivolous. See Bruce v. Coulter, et al., No. 14-cv-00210-LTB (D. Colo. Apr. 23, 2014) (dismissed as malicious under 28 U.S.C. § 1915(e)(2)(B)(i)); Bruce v. Denney, No. 14-cv-03026-SAC (D. Kan. Apr. 2, 2014) (dismissed for failure to state a claim and as legally frivolous); Bruce v. C. Wilson, et al., No. 13-cv-00491-WJM-CBS (D. ...