United States District Court, D. Kansas
Crow U.S. Senior District Judge.
brings this pro se civil rights action pursuant to
42 U.S.C. § 1983. Plaintiff is currently incarcerated at
the El Dorado Correctional Facility in El Dorado, Kansas
(“EDCF”). The Court screened Plaintiff's
Second Amended Complaint (Doc. 33) pursuant to 28 U.S.C.
§ 1915A. (Doc. 32.) The Court dismissed Plaintiff's
retaliation claim in Count I, and ordered a Martinez
report for Counts II and III. Id. This matter is
before the Court on Plaintiff's Motion to Alter or Amend
Judgment Per Rule 59 (Doc. 34).
motion to alter or amend a judgment pursuant to Fed.R.Civ.P.
59(e) may be granted only if the moving party can establish
(1) an intervening change in controlling law; (2) the
availability of new evidence that could not have been
obtained previously through the exercise of due diligence; or
(3) the need to correct clear error or prevent manifest
injustice.” Wilkins v. Packerware Corp., 238
F.R.D. 256, 263 (D. Kan. 2006), aff'd, 260
F.App'x 98 (10th Cir. 2008) (citing Brumark Corp. v.
Samson Res. Corp., 57 F.3d 941, 948 (10th Cir. 1995));
see also Servants of the Paraclete v. Does, 204 F.3d
1005, 1012 (10th Cir. 2000). Rule 59(e) does not permit a
losing party to rehash or restate arguments previously
addressed or to present new legal theories or supporting
facts that could have been raised in plaintiff's earlier
filings. Wilkins, 238 F.R.D. at 263 (citing
Brown v. Presbyterian Healthcare Servs., 101 F.3d
1324, 1332 (10th Cir. 1996), cert. denied, 520 U.S.
1181 (1997)); Servants of Paracletes, 204 F.3d at
1012. A 59(e) motion “is not a second chance for the
losing party to make its strongest case or to dress up
arguments that previously failed.” Voelkel v. Gen.
Motors Corp., 846 F.Supp. 1482, 1483 (D. Kan.),
aff'd, 43 F.3d 1484 (10th Cir. 1994) (citation
party seeking relief from a judgment bears the burden of
demonstrating that he satisfies the prerequisites for such
relief. Van Skiver v. U.S., 952 F.2d 1241, 1243-44
(10th Cir. 1991), cert. denied, 506 U.S. 828 (1992).
Reconsideration of a judgment after its entry is an
extraordinary remedy that should be used sparingly. See
Templet v. HydroChem, Inc., 367 F.3d 473, 479 (5th Cir.
2004); Allender v. Raytheon Aircraft Co., 439 F.3d
1236, 1242 (10th Cir. 2006); Zucker v. City of Farmington
Hills, 643 F.App'x 555, 562 (6th Cir. 2016) (relief
under R. 59(e) is rare).
motion, Plaintiff states that he erroneously titled his
previous amended complaint his “Second Amended
Complaint, ” when in actuality it was only his First
Amended Complaint. Plaintiff further alleges that the Court
was fully aware that there was not a previous First Amended
Complaint and “it was biased myopia on the Court
letting that error slide without correcting it.” (Doc.
34 at 1.) In addition, Plaintiff disagrees with the
Court's findings and rulings regarding his retaliation
claim and reargues some of his allegations of retaliation.
Court screened Plaintiff's original Complaint at Doc. 1
pursuant to 28 U.S.C. § 1915A, and found that Plaintiff
failed to state a claim. (Doc. 27.) The Court granted
Plaintiff thirty days in which to file a complete and proper
Amended Complaint to cure all the deficiencies set forth in
the Court's Order. Id. Plaintiff filed an
Amended Complaint (Doc. 28). Recognizing that his Amended
Complaint was deficient, Plaintiff filed a motion for leave
to file a Second Amended Complaint (Doc. 30). The Court
granted Plaintiff's motion and screened Plaintiff's
Second Amended Complaint (“SAC”) pursuant to 28
U.S.C. § 1915A. (Doc. 32.) Although Plaintiff's SAC
superseded his previous complaints, those complaints were
nonetheless filed and Plaintiff is not entitled to continue
to use the provision in Rule 15 which allows plaintiffs to
file an amended complaint “once as a matter of
course.” See Fed. R. Civ. P. 15.
Plaintiff's SAC at Doc. 32 was properly referred to as
Plaintiff's “Second Amended Complaint.”
does not contend that there has been an intervening change in
the controlling law. Nor does he allege that there is newly
discovered evidence, which was previously unavailable. If
Plaintiff believes there is a need to correct clear error or
prevent manifest injustice, he has not supported that belief
with a description of clear error of fact or law.
Furthermore, all allegations made by Plaintiff in this motion
either were or could have been presented prior to dismissal
of his retaliation claim. His mere restatement of his claim,
rehashing of arguments, advancement of new arguments or
additional supporting facts, and disagreement with the
findings and rulings of this Court fail to demonstrate the
existence of any extraordinary circumstances that would
justify a decision to alter or amend the order dismissing his
retaliation claim. The reasons for dismissal of
Plaintiff's retaliation claim and the legal standards
applied were fully explained in the Court's prior orders.
does not meet the exacting standard for relief under
Fed.R.Civ.P. 59(e). In sum, Plaintiff has failed to meet the
standard required for this Court to alter or amend its
February 21, 2017 Order at Doc. 32, and that ruling stands.
IS THEREFORE ORDERED BY THE COURT that
Plaintiff's Motion to Alter or Amend Judgment Per Rule 59
(Doc. 34) is denied.