United States District Court, D. Colorado
ORDER
Kathleen M Tafoya United States Magistrate Judge
Before
the court is Plaintiff's “Motion for
Reconsideration of Order at ECF No. 202.”
([“Motion”], Doc. No. 208.) No. response has been
filed to the Motion.
Plaintiff
Naser Abdo, a pro se prisoner litigant,
[1]
seeks reconsideration, pursuant to Federal Rule of Civil
Procedure 59(e), of this court's Order to Dismiss in
Part, entered on December 11, 2019. (Mot. 1; see
Doc. No. 202.) Plaintiff argues that certain of his dismissed
claims should be reinstated, because the court
“misapprehended the facts and Plaintiff's
position” as to those claims. (Mot. 2-7.)
A Rule
59(e) motion may be granted “to correct manifest errors
of law or to present newly discovered evidence.”
Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir.
1997) (internal quotation marks omitted). Relief under Rule
59(e) also is appropriate when “the court has
misapprehended the facts, a party's position, or the
controlling law.” Servants of the Paraclete v.
Does, 204 F.3d 1005, 1012 (10th Cir. 2000). However, a
Rule 59(e) motion is not a new opportunity to revisit issues
already addressed, or to advance arguments that could have
been previously raised. Id.
Plaintiff,
a federal inmate, commenced this lawsuit pursuant to
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), and the Federal Tort
Claims Act [“FTCA”], 28 U.S.C. §§
2671-2680, asserting violations of his civil rights by the
United States and eight individual Defendants, all of whom
are federal prison employees. ([“Complaint”],
Doc. No. 126 at 2-4.) In his Fourth Amended Complaint,
Plaintiff lodges eighteen causes of action: six FTCA claims
for battery by the United States (Claims 1-3, 7, 15, 18);
four FTCA claims for negligence by the United States (Claims
8, 10, 12-13)[2]; five Eighth Amendment claims for
excessive force by individual Defendants; (Claims 4-6, 9,
16); two Eighth Amendment claims for deliberate indifference
by individual Defendants (Claims 11, 14); and one Eighth
Amendment claim for failure to intervene by an individual
Defendant (Claim 17). (Id. at 18-30 ¶¶
55-97.)
On
April 19, 2019, Defendants moved to dismiss all claims
against them for lack of subject matter jurisdiction, and for
failure to state a claim. (Doc. No. 143.) On December 11,
2019, this court granted Defendants' motion, in part,
with respect to the Eighth Amendment claims against the
individual Defendants, and with respect to the FTCA claims
for negligence against the United States. (Doc. No. 202 at
32-33.) The December 11, 2019 dismissal order discusses, in
detail, the reasons for the dismissal of those claims.
In the
instant Motion, Plaintiff argues that the dismissal of his
FTCA claims for negligence was a “clear error of
law.” (Mot. 1.) Plaintiff contends, specifically, that
the court “should have found” that there was a
sufficient “special relationship” between himself
and the individual Defendants to establish a legal duty of
care. (Id. at 2.) In addition, as to the medical
negligence claim, Plaintiff argues that the requisite duty of
care “is clearly codified in [federal prison] policy
leaving no room for professional judgment upon which expert
testimony would be predicated.” (Id. at 5.)
After
review of the instant Motion and the entire file, the court
finds no justifiable reason to reconsider the Order to
Dismiss in Part, or to reinstate certain of the dismissed
claims. Indeed, in his Motion, Plaintiff merely rehashes
arguments previously raised in his response to
Defendants' motion to dismiss. See Paraclete,
204 F.3d at 1012. Therefore, because Plaintiff has failed to
demonstrate a misapprehension of the facts, his position, or
the controlling law, his motion for reconsideration will be
denied.
Accordingly,
it is
ORDERED
that Plaintiff s “Motion for Reconsideration of Order
at ECF No. 202” (Doc. No. 208) is
DENIED.
---------
Notes:
[1] Mindful of Plaintiff's pro
se status, the court “review[s] his pleadings and
other papers liberally and hold[s] them to a less stringent
standard than those drafted by attorneys.”
Trackwell v. United States, 472 F.3d 1242, 1243
(10th Cir. 2007) (citations omitted); see Haines v.
Kerner, 404 U.S. 519, 520-21 (1972) (holding the
allegations of a pro se complaint “to less
stringent standards than formal pleadings drafted by
lawyers”).
[2] Claims 8, 10, and 12 allege negligent
performance of duty, while Claim 13 alleges both negligent
performance of duty ...