United States District Court, D. New Mexico
ORDER ON MOTIONS
Fashing United States Magistrate Judge.
MATTER comes before the Court on three motions filed by
plaintiff Isaac Montaño, an inmate at Southern New
Mexico Correctional Facility, appearing pro se. First, Mr.
Montaño filed a Motion for Reconsideration on October
15, 2019. Doc. 170. Defendant Centurion Correctional
Healthcare of New Mexico, LLC (“Centurion”),
filed its response on October 28, 2019. Doc. 173. Mr.
Montaño did not file a reply. Second, Mr. Montaño
filed a Request for an Extension of Time on October 15, 2019.
Doc. 171. Centurion filed its response on October 28, 2019.
Doc. 172. Mr. Montaño filed his reply on November 14,
2019. Doc. 176. Finally, on November 14, 2019,
Mr. Montaño filed a Motion for Sanctions on
Centurion's Counsel. Doc. 174. Centurion filed a response
on November 19, 2019. Mr. Montaño did not file a
reply. Having read the submissions of the parties and being
fully advised, the Court finds that Mr. Montaño's
motion for reconsideration is not well taken and the Court
will DENY it. Mr. Montaño's motion for an
extension of time is well taken in part and the Court will
GRANT it in part and DENY it in part. Finally, Mr.
Montaño's motion for sanctions is not well taken
and the Court will DENY that motion.
Standard for Pro Se Filings
Court construes pro se filings liberally. See, e.g.,
Calhoun v. Att'y Gen. of Colorado, 745 F.3d 1070,
1073 (10th Cir. 2014) (“We liberally construe
[plaintiff's] pro se filings.”). Although a pro se
litigant's pleadings are entitled to a liberal
construction, Mr. Montaño must nevertheless follow the
rules of federal procedure. Ogden v. San Juan
County, 32 F.3d 452, 455 (10th Cir.1994). Moreover, the
parties and the court are under no obligation to craft legal
theories for the plaintiff, nor may they supply factual
allegations to support a pro se plaintiff's claim for
relief. See Hall v. Bellmon, 935 F.2d 1106, 1110
Mr. Montaño's Motions are in Violation of the
Court has previously advised Mr. Montaño that even
though he is appearing pro se, that does not excuse him from
following the Federal Rules of Civil Procedure and this
district's local rules. See Docs. 145 at 2-3;
159 at 4, n.3; 160 at 6. Regardless, Mr. Montaño has
failed to comply with local rule 7.1(a), which requires that
a movant “must determine whether a motion is
opposed” and warns that a “motion that omits
recitation of a good-faith request for concurrence may be
summarily denied.” D.N.M.LR-Civ. 7.1. The ordinary
leniency given to pro se litigants does not excuse Mr.
Montaño's obligation to comply with applicable
procedural rules. See Kay v. Bemis, 500 F.3d 1214,
1218 (10th Cir. 2007) (“liberal treatment [for pro se
litigants] is not without limits, and this court has
repeatedly insisted that pro se parties follow the same rules
of procedure that govern other litigants.”).
Montaño's motions do not include a statement that
he sought concurrence from Centurion on his motions, and the
motions therefore may be denied on that basis alone. See
generally Docs. 170, 171, and 174. While the Court may
deny Mr. Montaño's motions for his failure to
comply with the local rules, his motions also fail on their
Mr. Montaño's Motion for Reconsideration
Montaño filed two motions to compel in this case.
See Docs. 104, 120. The Court denied the first
motion to compel without prejudice as premature. Doc. 112. In
the order denying the first motion, the Court explained to
Mr. Montaño that he had an obligation to meet and
confer, or attempt to meet and confer, with Centurion prior
to filing a motion to compel. Doc. 112 at 2. The Court
further explained that his motion must include a
certification that the movant has met and conferred, or made
an attempt to do so, in good faith to resolve the dispute.
Montaño filed his second motion to compel which was
largely identical to his first motion to compel.
Compare Doc. 104 with Doc. 120. Once again,
Mr. Montaño failed to certify that he had met and
conferred, or attempted to meet and confer, with Centurion
prior to filing his motion to compel. Doc. 120. Accordingly,
the Court denied his second motion and ordered Centurion to
submit a motion and affidavit for attorney's fees for
having to respond to the second motion. Doc. 145. Centurion
filed its motion for attorney's fees, and the Court
granted the motion. Docs. 145, 166.
motion for reconsideration, Mr. Montaño asks the Court
to reconsider ordering him to pay Centurion's
attorney's fees for the second motion to compel. Doc. 170
at 1, 6. A motion for reconsideration provides the court with
an opportunity to correct “manifest errors of law or
fact and to review newly discovered evidence.” Dees
v. Wilson, 796 F.Supp. 474, 475 (D. Kan. 1992),
aff'd, 13 F.3d 405 (10th Cir. 1993). A court has
discretion whether to grant or deny a motion for
reconsideration. Hancock v. City of Oklahoma City,
857 F.2d 1394, 1395 (10th Cir. 1988). There are three
circumstances in which a court may appropriately grant a
motion for reconsideration: (1) where the court made a
manifest error of fact or law; (2) where there is newly
discovered evidence; and (3) where there has been a change in
the law. See Servants of the Paraclete v. Does, 204
F.3d 1005, 1012 (10th Cir.2000). A motion for reconsideration
is not to be used as a vehicle for the losing party to rehash
arguments previously considered and rejected. Voelkel v.
GMC, 846 F.Supp. 1482, 1483 (D. Kan.),
aff'd, 43 F.3d 1484 (10th Cir. 1994). Indeed,
“[a] party's failure to present his strongest case
in the first instance does not entitle him to a second chance
in the form of a motion to amend.” Paramount
Pictures Corp. v. Video Broadcasting Sys., Inc., No.
89-1412-C, 1989 WL 159369, at *1 (D. Kan. Dec.15, 1989). Such
motions are therefore not appropriate if the movant intends
only that the court hear new arguments or supporting facts.
Van Skiver v. United States, 952 F.2d 1241, 1243
(10th Cir. 1991). “The party moving for reconsideration
has the burden to show that there has been a change of law,
that new evidence is available, or that reconsideration is
necessary to correct clear error or prevent manifest
injustice. See United States v. Deleon, No. CR
15-4268 JB, 2016 WL 7242579, at *29 (D.N.M. Oct. 28, 2016).
Mr. Montaño does not allege a change in law or the
availability of new evidence. Accordingly, his arguments
require the court to decide whether reconsideration is
necessary to correct any clear error or prevent manifest
injustice. Mr. Montaño argues that he was following
the advice of his former counsel to file the motion to
compel, that Centurion's counsel ignored him, that his
mental health, lack of litigation experience, and no access
to a law library all contributed to his filing the second
motion to compel. Doc. 170. None of these excuses, however,
persuade the Court to reconsider its ruling.
explained in the Court's prior orders, Mr. Montaño
had an obligation to show he made a good faith effort to meet
and confer with counsel about the alleged discovery
deficiencies. Doc. 145 at 2; see also Doc. 112 at 2.
Mr. Montaño was aware of his obligation when he filed
his second motion to compel. He did not need any legal
expertise or access to law a library to understand this
obligation. Further, although Mr. Montaño contends
that Centurion's counsel ignored him, he does not present
any evidence that he made any effort to meet and confer with
counsel, and he did not certify in his second motion that he
attempted to meet and confer. See Docs. 112 at 2;
145 at 3. Finally, as the Court explained in its order
denying his second motion to compel, if a motion is denied,
the Court “must . . . require the movant, the
attorney filing the motion or both to pay the party or
deponent who opposed the motion its reasonable expenses
incurred in opposing the motion, including attorney's
fees.” See Docs. 145 at 4; 166 at 3, (quoting
Fed.R.Civ.P. 37(a)(5)(B)) (emphasis added). Given this
directive, the Court ordered Mr. Montaño to pay the
attorney's fees Centurion incurred in opposing the second
motion to compel. The Court did not clearly error and there
was no manifest injustice in ordering Mr. Montaño to
pay the attorney's fees Centurion incurred in opposing
the second motion to compel. The Court will not overturn its
prior order, and it DENIES Mr. Montaño's motion
Mr. Montaño's Request for an ...