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Perreten v. Waite

United States District Court, D. Colorado

January 23, 2017

ROBERT PERRETEN, Plaintiff,
v.
RON WAITE, N.P., MARK WINSLOW, M.D., and DAVID JONES, M.D., Defendants.

          ORDER

          Michael E. Hegarty United States Magistrate Judge.

         Before the Court is Plaintiff's “Motion, ” which has been construed as a Motion Seeking Relief from a Final Judgment or Order pursuant to Fed.R.Civ.P. 60(b) [filed January 10, 2017; ECF No. 64]. For the following reasons, the Court denies the motion.

         Plaintiff initiated this action on November 27, 2015, stating three claims against six Defendants and invoking the Eighth and Fourteenth Amendments. ECF No. 1 at 5-22. After Plaintiff failed to file an amended complaint as instructed during initial review, Senior District Judge Babcock dismissed three defendants, but allowed the Eighth Amendment claims against Defendants Waite, Winslow, and Jones to proceed. ECF No. 12. The parties consented to this Court's jurisdiction to hear all matters in the case on May 26, 2016. ECF No. 45. The Defendants, then, filed motions to dismiss the Plaintiff's Complaint (ECF Nos. 28, 47) and, on August 3, 2016, the Court granted these motions. ECF No. 57. More than five months later, the Plaintiff filed the present motion.

         In this case, the Court must construe the Plaintiff's motion for relief liberally because Plaintiff 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).

         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 reconsider filed more than ten days after the final judgment should be considered pursuant to Rule 60(b). Id.

         In Gonzalez v. Crosby, 545 U.S. 524 (2005), the Supreme Court held that Rule 60(b) “allows a party to seek relief from a final judgment, and request reopening of his case, under a limited set of circumstances.” Id. at 528. Under Rule 60(c), such a motion “must be made within a reasonable time - and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.” Fed.R.Civ.P. 60(c). Moreover, under Rule 60(b)(6), a movant must show “extraordinary circumstances.” Gonzalez, 545 U.S. at 535.

         Here, the Plaintiff does not specify which “reason” by which he brings his motion under Rule 60(b).[1] The Court finds that reasons (1)-(5) do not apply; therefore, it will analyze Plaintiff's motion as seeking relief from judgment under Rule 60(b)(6).

         The rule does not permit a party to reargue issues by rehashing facts and arguments already addressed or available, yet neglected, in the original proceeding. See Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000); Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991). Courts rarely grant Rule 60(b) motions, deferring instead to the need for finality and the appeals process. See Davis v. Kan. Dep't of Corrs., 507 F.3d 1246, 1248 (10th Cir. 2007) (“Parties seeking relief under Rule 60(b) have a higher hurdle to overcome because such a motion is not a substitute for an appeal.”) (quoting Cummings v. Gen. Motors Corp., 365 F.3d 944, 954 (10th Cir. 2004)).

         Here, the Court finds Plaintiff's motion is merely a “re-hash” of the issues and arguments raised in his briefing on the motion to dismiss. Specifically, Plaintiff contends he is “not a diabetic” and, thus, the Court's “ruling” that he “is diabetic” is incorrect. Mot. 1-2.

         First, the Court never “ruled” nor “determined” Plaintiff to be diabetic. Plaintiff argued in his written response to the motion to dismiss that he was not being treated for diabetes and, thus, a prescription of “Neurontin” was improper. Resp. 1-5, ECF No. 55. Consequently, in analyzing the subjective component of Plaintiff's Eighth Amendment claim, the Court noted what it found in the Complaint and documents attached to it:

According to Plaintiff's own Complaint, Neurontin is used to help control seizures, diabetic peripheral neuropathy, and nerve pain. See docket #1-1 at 1-6. The
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it ...

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