United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING MOTION FOR
Thor Kirk Guadalupe County Correctional Facility Santa Rosa,
New Mexico Plaintiff pro se.
MATTER comes before the Court on: (i) Plaintiff
James Thor Kirk's Letter to the Court, (dated November 6,
2017), filed November 9, 2017 (Doc. 14)(“Motion for
Reconsideration”); and (ii) Kirk's Martinez Report
(Discovery Subject Matter Facts), filed March 23, 2018 (Doc.
16)(“Martinez Report Request”). In his Motion for
Reconsideration, Kirk states that the Court has denied him
justice, and has “slandered and disrespected” his
name by imposing strikes against him under 28 U.S.C. §
1915(g). Motion for Reconsideration at 1. To the extent that
Kirk's motion may be liberally construed as a motion to
alter or to amend the judgment under rule 59(e) of the
Federal Rules of Civil Procedure or a motion for relief from
judgment under rule 60(b) of the Federal Rules of Civil
Procedure, the Court will deny the motions. The Court will
also deny Kirk's Martinez Report Request as moot.
motion to alter or amend the judgment under rule 59(e) must
be filed “no later than 28 days after the entry of the
judgment, ” Fed.R.Civ.P. 59(e), and “is the
appropriate vehicle to correct manifest errors of law or to
present newly discovered evidence, ” Commonwealth
Prop. Advocates, LLC v. Mortg. Elec. Registration Sys.,
Inc., 680 F.3d 1194, 1200 (10th Cir. 2011) (internal
quotation marks and citation omitted). A rule 60(b) 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)(1), and is the appropriate vehicle
relieve a party or its legal representative from a final
judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(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 prospectively is no longer equitable;
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b). “If a motion is timely under
both rules, how [to] construe it depends on the reasons
expressed by the movant.” Commonwealth Prop.
Advocates, LLC, 680 F.3d at 1200.
a rule 59(e) motion nor a Rule 60(b) motion is an
“appropriate vehicle to reargue an issue previously
addressed by the court when the motion merely advances new
arguments, or supporting facts which were available at the
time of the original motion.” Servants of Paraclete
v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Thus, a
motion under rule 59(e) or rule 60(b) is “appropriate
where the court has misapprehended the facts, a party's
position, or the controlling law, ” but is “not
appropriate to revisit issues already addressed or advance
arguments that could have been raised in prior
briefing.” Servants of Paraclete v. Does, 204
F.3d at 1012.
does not allege that the Court has misapprehended the facts,
a party's position, or the controlling law in its October
26, 2017 Memorandum Opinion and Order and Final Judgment.
Instead, he contends that it is unfair that the state action
for the wrongful death of his father was settled when he was
only child and that he never received the money he was
promised. Motion for Reconsideration at 2. The Court
previously addressed Kirk's contention that he received
inadequate compensation for his father's wrongful death.
See Memorandum Opinion and Order at 4-7, filed
October 26, 2017 (Doc. 11)(“MOO”). In the MOO,
the Court explained that Kirk's Federal Habeas Corpus
Petition, filed August 22, 2017 (Doc. 1)
(“Complaint”), “fails to allege that any of
the Defendants' actions violated Kirk's federal
constitutional or civil rights” and, therefore, his
Complaint fails to state a claim for relief under 42 U.S.C.
§ 1983. MOO at 4. Additionally, it was plain from the
face of Kirk's civil rights complaint that Kirk had known
“of the alleged facts supporting his wrongful death
claim and the compromise of that claim for the past
thirty-one years” and, accordingly, that the three-year
statute of limitations barred his § 1983 claims.
See MOO at 6. Last, Kirk has not provided the Court
with a reason to reconsider its determination that he has
accrued four strikes under 28 U.S.C. § 1915(g) and
“can no longer proceed in forma pauperis in the federal
courts unless he is ‘under imminent danger of serious
physical injury.'” MOO at 5-6 (quoting 28 U.S.C.
§ 1915(g)). Because Kirk simply revisits issues that the
Court already addressed and provides no basis for relief
under rule 59(e) or rule 60(b) of the Federal Rules of Civil
Procedure, the Court will deny the Motion to Reconsider.
Motion to Reconsider, Kirk also asks the Court to explain
“who, what, where, when and how do I find help”
to reopen his state wrongful death action. Motion for
Reconsideration at 3. It is not, however, “the proper
function of the district court . . . to assume the role of
advocate for the pro se litigant, ” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. ...