United States District Court, D. Colorado
DELMART E.J.M. VREELAND, II, Plaintiff,
CELIA SCHWARTZ, Legal Assistant II, Colorado Department of Corrections, Buena Vista Correctional Facility, LIEUTENANT S. MORGAN, BVCF/North Unit Colorado Department of Corrections, Buena Vista Correctional Facility, SERGEANT G. WOOD, BVCF/North Unit Colorado Department of Corrections, Buena Vista Correctional Facility, MANAGER JEFF HANSEN, BVCF/North Unit Colorado Department of Corrections, Buena Vista Correctional Facility, DAVID COTTEN, Administrative Service Manager, Colorado Department of Corrections, Buena Vista Correctional Facility, WILLIAM BRUNELL, Associate Warden, Colorado Department of Corrections, Buena Vista Correctional Facility, and JOHN DAVIS, Warden, Colorado Department of Corrections, Buena Vista Correctional Facility, Defendants.
A. BRIMMER United States District Judge.
matter is before the Court on plaintiff Delmart E.J.M.
Vreeland, II's Motion to Judge Philip A. Brimmer to
Reconsider a Portion of the Court's Order (Doc. No. 68)
as it Pertained to Dismissal of Defendant Jeff Hansen [Docket
No. 177]. In light of plaintiff's pro se status, the
Court construes his filings liberally. See Haines v.
Kerner, 404 U.S. 519, 520 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).
Federal Rules of Civil Procedure do not expressly provide for
motions for reconsideration. See Hatfield v. Bd. of Cty.
Comm'rs for Converse Cty., 52 F.3d 858, 861 (10th
Cir. 1995). It is, however, within the Court's discretion
to reconsider its rulings. See Fye v. Okla. Corp.
Comm'n, 516 F.3d 1217, 1223 n.2 (10th Cir. 2008)
(“The District Court's partial summary judgment
ruling was not a final judgment. Thus, [plaintiff's]
motion for reconsideration is considered an interlocutory
motion invoking the district court's general
discretionary authority to review and revise interlocutory
rulings prior to entry of final judgment.”). When doing
so, the Court considers whether new evidence or legal
authority has emerged or whether the prior ruling was clearly
in error. See Vigil v. Colorado Dep't. of
Corrections, No. 09-cv-01676-PAB-KLM, 2011 WL 1518660,
at *1 (D. Colo. Apr. 20, 2011); cf. Servants of the
Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000)
(“[A] motion for reconsideration is appropriate where
the court has misapprehended the facts, a party's
position, or the controlling law. It is not appropriate to
revisit issues already addressed or advance arguments that
could have been raised in prior briefing.”) (citations
requests that the Court reconsider its decision to dismiss
the claims against defendant case manager Jeff Hansen. Docket
No. 177 at 4. Plaintiff argues that the Court
“dismissed the Plaintiff's assertions of
retaliation by way of transfer out of the [Buena Vista
Correctional Facility] by Defendant Jeff Hansen.”
Id. at 2, ¶ 4.
misreads the Court's order. Plaintiff's amended
complaint contained two claims against Mr. Hansen: claim
four, which alleged that plaintiff was fired from his prison
job in retaliation for protected activity, and claim five,
which alleged that plaintiff was transferred to a different
facility in retaliation for protected activity. Docket No. 35
at 19-27. The Court dismissed claim four with respect to Mr.
Hansen because it merely alleged that Mr. Hansen denied
grievances related to plaintiff's firing, which does not
state a claim for retaliation. Docket No. 68 at 10 (citing
Whitington v. Ortiz, 307 F. App'x 179, 193 (10th
Cir. 2009)). The Court did not dismiss plaintiff's fifth
claim. Id. at 11-12.
argues that the Court should reconsider its order and
reinstate his claims against Mr. Hansen because of evidence
recently produced to plaintiff in discovery. Docket No. 177
at 2, ¶¶ 7-9. Plaintiff specifically refers to two
documents. Id. The first document is a note by Mr.
Hansen, written after plaintiff was transferred, stating that
“Vreeland was not kicked out of the Incentive
Unit” and instead was “moved by Offender
Services.” Id. at 5. The second document is a
report from Mr. Hansen's co-worker stating that, while
plaintiff was being prepared for transfer to the new
facility, “CM Hansen came up to me and said
‘isn't that great, how I finally got him out of
here'” and stating that Mr. Hansen “went on
to describe how unhappy Vreeland was when [Mr. Hansen] had
him sign the paperwork.” Id. at 6.
claims that both of these documents are evidence that his
transfer was retaliatory, i.e., that they are related to his
fifth claim, which remains in the case. Id. at 3,
¶ 13 (“[T]his newly discovered document/statement
. . . establishes that Hansen did in fact cause the transfer
of Plaintiff, and did so to retaliate against Plaintiff,
i.e., to ‘get him out of here', because of law
suits and griavances [sic] against Hansen and other
defendants.”); see also Docket No. 177 at 3,
¶ 11. Plaintiff does not explain, however, how either
document supports the allegations in his fourth claim that
Mr. Hansen retaliated against plaintiff in relation to being
fired. Docket No. 177 at 3, ¶ 14. As noted above, that
claim was dismissed with respect to Mr. Hansen because Mr.
Hansen was not involved in the firing itself and was only
alleged to have denied related grievances. Docket No. 68 at
10. Thus, plaintiff has not shown that the dismissal of
plaintiff's fourth claim against Mr. Hansen was clearly
erroneous even in light of the newly produced evidence.
Therefore, the Court will deny plaintiff's motion.
foregoing reasons, it is ORDERED that
plaintiff's Motion to Judge Philip A. Brimmer to
Reconsider a Portion of the Court's Order (Doc. No. 68)
as it Pertained to ...