United States District Court, D. Colorado
A. Brimmer Judge
matter comes before the Court on the Motion to Reconsider
(ECF 103) Order [Docket No. 107] filed by plaintiff Luke
Irvin Chrisco. The Court has subject matter jurisdiction
pursuant to 28 U.S.C. §§ 1331 and 1367.
is presently incarcerated at San Carlos Correctional Facility
(“SCCF”) in Pueblo, Colorado. Docket No. 1 at 2.
On April 26, 2017, he f iled a pro se prisoner
complaint asserting seventeen claims for relief arising out
of a series of incidents that occurred at SCCF in April 2015.
Docket No. 1. On July 31, 2017, defendants filed a motion to
dismiss the complaint under Rules 12(b)(1) and 12(b)(6) of
the Federal Rules of Civil Procedure. Docket No. 32. On
February 20, 2018, the magistrate judge recommended that the
Court grant the motion to dismiss on a combination of
jurisdictional and non-jurisdictional grounds. Docket No. 94.
Of particular relevance to plaintiff's present motion,
the magistrate judge determined that plaintiff's first
through sixth and eighth claims for relief were barred by the
applicable statute of limitations because the claims accrued
before April 24, 2015. Docket No. 94 at 10-11. In reaching
that determination, the magistrate judge rejected
plaintiff's argument for equitable tolling on the ground
that plaintiff had failed to assert any wrongful conduct on
the part of the named defendants. Id. at 11-12
(applying rule that “doctrine of equitable tolling is
limited to situations in which [ ] the defendant's
wrongful conduct prevented the plaintiff from asserting the
claims in a timely manner” (quoting Noel v.
Hoover, 12 P.3d 328, 330 (Colo.App.
2000)). Both parties filed objections to the
magistrate judge's recommendation. Docket Nos. 96, 97.
March 27, 2018, the Court entered an order adopting the
magistrate judge's recommendation and granting
defendants' motion to dismiss. Docket No. 103. With
respect to the equitable tolling issue, the Court agreed with
the magistrate judge's determination that plaintiff had
failed to justify equitable tolling based on wrongful
conduct. Docket No. 103 at 4. The Court further considered
whether equitable tolling was warranted based on
“exceptional circumstances, ” but concluded that
plaintiff had not shown that he had made “diligent
efforts” to pursue his claims. See Docket No.
103 at 5-6 (citing Noel, 12 P.3d at 330). In
particular, the Court noted that plaintif f “failed to
exercise diligence when, as the statutory deadline
approached, he did not (a) attempt to have the library copy
his complaint more quickly or ask the library to return it to
him without making a copy, or (b) file a hastily-prepared
complaint to avoid the running of the statute of
limitations.” Docket No. 103 at 7. On April 9, 2018,
plaintiff filed a motion for reconsideration challenging the
Court's resolution of the equitable tolling issue. Docket
No. 107. Defendants have not filed a response.
Federal Rules of Civil Procedure do not specifically provide
for motions for reconsideration. See Hatfield v. Bd. of
County Comm'rs for Converse County, 52 F.3d 858, 861
(10th Cir. 1995). Instead, motions for reconsideration fall
within a court's plenary power to revisit and amend
interlocutory orders as justice requires. See Paramount
Pictures Corp. v. Thompson Theatres, Inc., 621 F.2d
1088, 1090 (10th Cir. 1980) (citing Fed.R.Civ.P. 54(b));
see also Houston Fearless Corp., 313 F.2d at 92.
However, in order to avoid the inefficiency which would
attend the repeated re-adjudication of interlocutory orders,
judges in this district have imposed limits on their broad
discretion to revisit interlocutory orders. See,
e.g., Montano v. Chao, No. 07-cv-00735-EWN-KMT,
2008 WL 4427087, at *5-6 (D. Colo. Sept. 28, 2008) (applying
Rule 60(b) analysis to the reconsideration of interlocutory
order); United Fire & Cas. Co. v. McCrerey &
Roberts Constr. Co., No. 06-cv-00037-WYD-CBS, 2007 WL
1306484, at *1-2 (D. Colo. May 3, 2007) (applying Rule 59(e)
standard to the reconsideration of the duty-to-defend order).
Regardless of the analysis applied, the basic assessment
tends to be the same: courts consider whether new evidence or
legal authority has emerged or whether the prior ruling was
clearly in error. Motions to reconsider are generally an
inappropriate vehicle to advance “new arguments, or
supporting facts which were available at the time of the
original motion.” Servants of the Paraclete v.
Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Because
plaintiff is proceeding pro se, the Court will
construe his motion for reconsideration liberally without
serving as his advocate. See Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991).
makes three arguments in support of reconsideration. First,
he contends that the Court erred “by failing to draw
all reasonable inferences in Plaintiff's favor” in
resolving the equitable tolling issue. Docket No. 107 at 2.
Second, he asserts that the record contains insufficient
evidence to support a conclusion that plaintiff did not
attempt to either retrieve his complaint before the filing
deadline or file a hastily-prepared complaint to avoid the
running of the limitations period. Id. Third,
plaintiff argues that the Court should not have dismissed his
claims without first issuing a show cause order to give
plaintiff an opportunity to demonstrate that he acted
diligently to meet the filing deadline. Id. Each of
these arguments is unpersuasive.
first argument misperceives plaintiff's burden on the
equitable tolling issue. Although plaintiff correctly
suggests that a court “must accept all well-pleaded
allegations of the complaint as true and [ ] construe them in
the light most favorable to the plaintiff” at the
motion to dismiss stage, Alvarado v. KOB-TV, LLC,
493 F.3d 1210, 1215 (10th Cir. 2007) (quotation marks and
citation omitted), plaintiff had the burden of showing that
he is entitled to equitable tolling. Gognat v.
Ellsworth, 224 P.3d 1039, 1049 (Colo.App. 2009) (stating
that the “plaintiff has the burden of establishing the[
] elements” of equitable tolling); see also Fratus
v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995) (“For
section 1983 actions, state law determines the appropriate
statute of limitations and accompanying tolling
provisions.”). Here, neither plaintiff's response
to defendants' motion to dismiss nor his objection to the
magistrate judge's recommendation gave any indication
that plaintiff either attempted to retrieve his complaint by
the filing deadline or tried to prepare another complaint to
avoid the running of the limitations period. Moreover, even
assuming plaintiff was entitled to reasonable inferences in
his favor, plaintiff does not point to any allegations or
evidence from which the Court could have inferred that
plaintiff diligently pursued his claims.
second argument also fails. Plaintiff asserts that there is
no evidence suggesting that he did not attempt to retrieve
his complaint or submit a hastily-drafted complaint before
the filing deadline. But the absence of such evidence does
not satisfy plaintiff's affirmative obligation to show
that equitable tolling is warranted. See Gognat, 224
P.3d at 1049 (denying claim for equitable tolling where
plaintiff presented insufficient evidence to support his
plaintiff contends that the Court should have issued a show
cause order to allow plaintiff to develop a “factual
record” regarding his efforts to pursue his claims.
Docket No. 107 at 2. However, plaintiff had at least two
opportunities - in his response to defendants' motion to
dismiss and in his objection to the magistrate judge's
recommendation - to proffer arguments and evidence in support
of his claim for equitable tolling. He failed to do so. Even
now, in his motion for reconsideration, plaintiff does not
provide any further information concerning his efforts to
submit his complaint before the filing deadline.
plaintiff has failed to show that the Court clearly erred in
denying his claim for equitable tolling or that there is new
evidence or legal authority that would justify
reconsideration of the Court's order, it is
that plaintiff's Motion to Reconsider (ECF 103) Order
[Docket No. 107] is DENIED.
Plaintiff asserted that equitable
tolling was warranted because “Defendant Org” had
prevented him from “possessing or obtaining a copy of
his prisoner complaint during March 26th to April 24th, 2017,
a period in which the [statute of limitations] may have run