United States District Court, D. New Mexico
CHARLES D.J. BARNES, Plaintiff,
STATE OF NEW MEXICO, et al, Defendants.
MEMORANDUM OPINION AND ORDER
C. BRACK SENIOR U.S. DISTRICT JUDGE.
matter comes before the Court on Plaintiff's motions for
reconsideration and to proceed in forma pauperis.
(Docs. 7-8.) Plaintiff is incarcerated and proceeding pro
se. He asks the Court to set aside the Judgment
dismissing his Civil Rights Complaint for failing to address
the filing fee. Because Plaintiff failed to demonstrate
grounds for reconsideration under Fed.R.Civ.P. 59, the Court
will deny the Motion.
filed this civil rights case on November 13, 2018. (Doc. 1.)
He seeks five million dollars in damages against the State of
New Mexico, Correctional Facility Corporation, and New
Mexico's Tenth Judicial District Court for
“victimization, . . . perjury, [and] concealment of
evidence.” (Id. at 1.) By an Order entered
December 12, 2018, the Court directed Plaintiff to pay the
$400 civil filing fee, or alternatively, submit an in
forma pauperis application no later than January 11,
2019. (Doc. 2.) The Order attached a blank copy of the form
application and warned that the failure to timely comply may
result in dismissal of this action without further notice.
(Id. at 1.)
failed to prepay the filing fee or return the completed
in forma pauperis application. Therefore, by an
Order and Judgment entered January 30, 2019 (Docs. 5-6), the
Court dismissed the civil rights action without prejudice
pursuant to Fed.R.Civ.P. 41(b). See Olsen v. Mapes,
333 F.3d 1199, 1204 n.3 (10th Cir. 2003) (“Rule 41(b) .
. . has long been interpreted to permit courts to dismiss
actions sua sponte for a plaintiff's failure to
prosecute or comply with the . . . court's
orders.”). The Dismissal Order stated: “If
Plaintiff still wishes to pursue his civil rights claims, he
must refile the complaint along with a completed in forma
pauperis motion.” (Doc. 5 at 2.)
than complying with this directive, Plaintiff filed a Motion
to Reconsider (Doc. 7) on February 11, 2019, along with a
handwritten in forma pauperis motion (Doc. 8).
Plaintiff also filed a series of notices indicating he paid a
portion of the filing fee. (Docs. 9-12.) However, the
Clerk's Office never received a payment until May 17,
2019, when Plaintiff attempted to submit $30 in connection
with this closed case.
motion to alter or amend a judgment filed within 28 days of
its entry is generally analyzed under Fed.R.Civ.P. 59(e).
See Van Skiver v. United States, 952 F.2d 1241, 1243
(10th Cir. 1991); Manco v. Werholtz, 528 F.3d 760,
761 (10th Cir. 2008). Grounds for setting aside the judgment
include: “(1) an intervening change in the controlling
law, (2) new evidence previously unavailable, and (3) the
need to correct clear error or prevent manifest
injustice.” Servants of Paraclete v. Does, 204
F.3d 1005, 1012 (10th Cir. 2000). A district court has
considerable discretion in deciding whether to disturb a
judgment under Rule 59(e). See Phelps v. Hamilton,
122 F.3d 1309, 1324 (10th Cir. 1997).
carefully reviewing Plaintiffs filings, the Court concludes
he has not demonstrated grounds for relief under Rule 59(e).
The law regarding Rule 41 dismissals has not changed.
Further, the Motion contains no explanation as to why
Plaintiff failed to timely comply with the Order to Cure
Deficiency. (See Doc. 2.) In fact, he still has not
returned the completed in forma pauperis form
provided by the Clerk's Office. The post-judgment in
forma pauperis motion (Doc. 8) is handwritten, unsworn,
and does not contain the financial information required by 28
U.S.C. § 1915. The Court is also not convinced
reconsideration is necessary to prevent injustice. The
dismissal was without prejudice, and there is no indication
from the record that the action will be time barred if filed
anew. The Court will therefore deny the motions to reconsider
and proceed in forma pauperis (Docs. 7-8). Rather
than applying the $30 payment to the closed case, the Court
will direct the Clerk's Office to return the payment to
Plaintiff along with a copy of the form civil rights
complaint and in forma pauperis application. To
pursue his claims, Plaintiff must file a new case
using those forms.
IS ORDERED that the Motion to Reconsider (Doc. 7)
and the Motion to Proceed In Forma Pauperis (Doc. 8)
IS FURTHER ORDERED that the Clerk's Office shall
return to Plaintiff the $30 payment received May 17, 2019,
along with a copy of this Order; a form civil rights