United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
Y. Wang United States Magistrate Judge.
Judge Nina Y. Wang This matter is before the court on
Petitioner Stanley Foote's “Motion to Reconsider
Facts, Take Judicial Notice of Exhibits from Document #25 in
Related Case, Request Appointment of Counsel” (the
“Motion”). [#29, filed December 22, 2016]. The Motion
is before the undersigned Magistrate Judge pursuant to 28
U.S.C. § 636(c) and the Order Referring Case dated
February 29, 2016 [#15].
Stanley Foote (“Petitioner” or “Mr.
Foote”) is currently incarcerated at the United States
Penitentiary (“USP”) in Florence, Colorado. [#1].
Petitioner filed his application for writ of habeas corpus
pursuant to 28 U.S.C. § 2241 on December 14, 2015.
[Id.]. Mr. Foote's application alleges that he
was found guilty of violating code 111A, Attempted
Introduction of Drugs, and Code 197, Use of the Telephone to
Further Criminal Activity (Incident Report No. 2574624).
[Id. at 2]. Prior to his transfer to USP Florence,
Petitioner appealed this decision and Regional Director J.L.
Norwood granted Plaintiff's appeal and remanded the
incident. [Id.]. However, upon being transferred to
USP Florence, he was informed that he would need to re-file
his appeal to the Regional Director for USP Florence.
speaking with the Warden at USP Florence, Petitioner was
informed “that my incident report would be reheard by
the DHO. However, the DHO refused to rehear the incident
report.” [Id. at 3]. Petitioner alleges that
his Due Process rights have been violated, and that it has
been over a year since his privileges were revoked and he has
lost contact with his family. [Id.]. Mr. Foote
continues that there is no evidence to convict him of the
Codes 111A and 197 violations, and that this court should
grant his appeal and “restore [his] privileges and good
March 10, 2016, this court held a Status Conference and
directed Respondents to file a response to Petitioner's
application by April 1, 2016, and for Petitioner to file a
reply by April 22, 2016. See [#16]. Then, on October
14, 2016, Petitioner filed a “Motion Requesting
Permission or Leave of the Court to Supplement Pleadings of
28 U.S.C.S. 2241 and Said Supplements in the Interest of
Judicial Economics, Pro Se” (the “Motion to
Supplement”) [#25] and a “Motion for Copy of file
stamped motion” (the “Motion for Copy”)
[#26]. By Minute Order, this court struck Mr. Foote's
Motion to Supplement for failure to comply with this
District's local rules of civil practice and granted his
Motion for Copy on November 3, 2016. See [#27].
December 22, 2016, Petitioner filed the instant Motion.
[#29]. In the Motion, Petitioner seeks a “Full,
complete copy of Document #25, so that he may possess a
complete copy of the filing, ” as he received only a
stamped copy of the Minute Order [#27] and the Motion for
Copy [#26]. See [#29 at 2]. Mr. Foote also contends
that the court misconstrued his previous Motion to Supplement
because he does not seek to amend his habeas corpus
application; rather, he “pleas this Honorable Court
reconsider only the Exhibit's from Document #25, as facts
that substantiate his claims already raised in his
[application].” [Id. at 3]. Petitioner
maintains that the Exhibits attached to Document #25 will aid
the court in ruling on his habeas corpus application, as he
could not provide the court with these exhibits earlier due
to his detention in the Special Housing Unit, and that he
does not seek to add additional claims. [Id.].
Mr. Foote requests appointment of pro bono counsel, because
he is unfamiliar with this District's local rules of
civil practice and the Federal Rules of Civil Procedure.
[Id.]. Further, Petitioner alleges that he has
“very little education and reads at a fourth grade
level, ” that he has met his burden of the necessity of
appointment of counsel, and that this court should consider
the merits of his case when appointing counsel.
Motion to Reconsider
Federal Rules of Civil Procedure do not expressly provide for
a motion for reconsideration, particularly in light of a
grant of a dispositive motion. Here, Mr. Foote has moved for
reconsideration outside the twenty-eight days after the entry
of an order or judgment; however, because Mr. Foote proceeds
pro se, this court construes the motion as one for
relief from judgment under Rule 59(e). See generally
Sherman v. Klenke, 653 F. App'x 580, 585 (10th Cir.
2016). Pursuant to Rule 59(e), a party may seek to amend or
set aside a judgment within 28 days of the final judgment.
Courts may grant motions to reconsider under Rule 59(e) where
there is “(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.” Servants of the Paraclete v. Does,
204 F.3d 1005, 1012 (10th Cir.2000). A Rule 59(e) motion is
not, however, intended to be used “to revisit issues
already addressed or advance arguments that could have been
raised in prior briefing.” Id.
discussed, Mr. Foote's Motion requests that the court
“reconsider” the exhibits attached to Document
#25, which substantiate his habeas corpus application. [#29
at 3]. He avers that he does not need to comply with
D.C.COLO.LCivR 15.1(b), because he does not seek to add any
new claims to his application. See [id.].
However, Petitioner's Motion to Supplement explicitly
sought leave to supplement his application under Rule 15 of
the Federal Rules of Civil Procedure to add supporting facts
that “happened after” all previous court
proceedings in this matter. See [#25 at 2]. Rule
15(d) of the Federal Rules of Civil Procedure provides that
“on motion and reasonable notice, ” the district
court has discretion to permit a party to serve a
supplemental pleading “setting out any transaction,
occurrence, or event that happened after the date of
the pleading to be supplemented.” Fed.R.Civ.P. 15(d).
Although Mr. Foote does not seek to allege new claims in his
habeas corpus application, he seeks to supplement his
application with facts that occurred after he filed his
application. Such a request must comply with Rule 15(d), as
well as this District's Local Rules of Civil Practice.
See D.C.COLO.LCivR 15.1; see also Murray v. City
of Tahlequah, 312 F.3d 1196, 1199 n.2 (10th Cir. 2008)
(noting that pro se litigants must still comply with
the same procedural and substantive law as a represented
party). Moreover, Mr. Foote does not allege a change in the
controlling law, new evidence previously unavailable, or the
need to correct clear error or manifest injustice. To the
extent Petitioner seeks to supplement his habeas corpus
application, he must comply with the relevant Federal Rule(s)
of Civil Procedure as well as this District's local
rules. Accordingly, to the extent Petitioner seeks a stamped
copy of Document #25, such a request is GRANTED; however, Mr.
Foote's request that the court reconsider the Motion to
Supplement and its Exhibits [#25] is DENIED.
Motion to Appoint Counsel
its review of the Motion for Appointment, the case file, and
the applicable law, the court DENIES the Motion for