United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW U.S. SENIOR DISTRICT JUDGE
matter is before the Court on Plaintiff's Motion to
Reconsider (Doc. #15). Plaintiff asks the Court to reconsider
its order of December 19, 2017, dismissing Plaintiff's
complaint for failure to state a claim on which relief may be
litigant who seeks reconsideration by the district court of
an adverse judgment may “file either a motion to alter
or amend the judgment pursuant to Fed.R.Civ.P. 59(e) or a
motion seeking relief from the judgment pursuant to
Fed.R.Civ.P. 60(b).” Van Skiver v. United
States, 952 F.2d 1241, 1243 (10th” Cir.
1991). A motion to alter or amend the judgment must be filed
within twenty-eight days after the judgment is entered.
See Fed.R.Civ.P. 59(e). The Court will consider Mr.
Eikenberry's motion to reconsider pursuant to Rule 59(e)
because the motion was filed within twenty-eight days after
the Judgment was entered in this action. See Van
Skiver, 952 F.2d at 1243 (stating that motion to
reconsider filed within ten-day limit for filing a Rule 59(e)
motion under prior version of that rule should be construed
as a Rule 59(e) motion).
59(e) motion may be granted where there is “(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
the Paraclete v. Does, 204 F.3d 1005, 1012
(10th Cir. 2000). “[A] motion for
reconsideration is appropriate where the court has
misapprehended the facts, a party's position, or the
controlling law.” Id. A Rule 59(e) motion
should not “revisit issues already addressed or advance
arguments that could have been raised in prior
briefing.” Id. (citing Van Skiver,
952 F.2d at 1243). Relief under Rule 59(e) is
“extraordinary and may be granted only in exceptional
circumstances.” Allender v. Raytheon Aircraft
Co., 439 F.3d 1236, 1242 (10th Cir. 2006).
motion, Mr. Eikenberry does not allege that there has been an
intervening change in the controlling law or that there is
newly discovered evidence. His arguments seem to attempt to
fall under the clear error or manifest injustice grounds. He
first argues that his complaint should not have been
dismissed because it was not “beyond a doubt that [he]
could prove no set of facts” stating a claim. Doc #15
at 1. While citing no legal authority, Mr. Eikenberry is
alluding to the standard set forth by the U.S. Supreme Court
in Conley v. Gibson: “[A] complaint should not
be dismissed for failure to state a claim unless it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim that would entitle him to relief.”
Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
However, this is no longer the standard by which the Court
must evaluate claims. The Supreme Court has found that
Conley's “no set of facts” language
“has earned its retirement.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 562-63 (2007). The
Twombly court explained that a plaintiff must plead
“enough facts to state a claim to relief that is
plausible on its face, ” nudging the claim
“across the line from conceivable to plausible.”
Twombly, 550 U.S. at 570.
from citing the incorrect standard, the problem with Mr.
Eikenberry's argument is that the Court did not even
reach the plausibility determination in dismissing his
complaint. Rather, Mr. Eikenberry's claims, no matter how
plausible (or implausible), are barred because they are not
timely. As the Court explained in its order to show cause
(Doc. #10) and order dismissing Mr. Eikenberry's
complaint (Doc. #12), each of his claims are either barred by
the statute of limitations or are premature under the
principles of Heck v. Humphrey.
Eikenberry next argues that the complaint of a plaintiff
proceeding in forma pauperis cannot be dismissed
prior to service of process on the defendants. He cites no
support for this assertion, and the Court knows of no such
requirement. He then argues the order to show cause does not
mention any “issues with claims stated.” This is
also incorrect. The order to show cause went through each of
Plaintiff's ten counts, explaining why each one failed to
state a claim.
next complains the Court did not address K.S.A. 60-513(b) and
thus misconstrued the law. K.S.A. 60-513 is titled
“Actions limited to two years.” Paragraph (a)
lists the actions subject to a two year statute of
limitations under Kansas law. Paragraph (b) discusses accrual
of the cause of action. As the Court stated in its order to
show cause, “[w]hile state law governs the length of
the limitations period and tolling issues, the accrual date
of a § 1983 cause of action is a question of federal
law.” Doc. #10 at 10. Because K.S.A. 60-513(b) is a
state law addressing the accrual of state causes of action,
it is not applicable to Mr. Eikenberry's complaint.
also argues that his case was dismissed
“prematurely” and “[t]he legal sufficiency
entitles this Court to observe ‘Manifest
Injustice.'” He offers no further explanation or
support. The Court can discern no manifest injustice
requiring the alteration of its order of dismissal.
Eikenberry concludes by arguing that Heck v.
Humphrey does not apply to his claims. This is an
attempt to revisit issues already addressed by the Court in
its order to show cause and in its order dismissing
Plaintiff's complaint. It is not an appropriate basis for
Plaintiff's motion. Servants of the Paraclete,
204 F.3d at 1012.
the Court finds no merit to Plaintiff's arguments and
finds no modification is required to prevent manifest
injustice, the Court denies Plaintiff's motion to
IS THEREFORE ORDERED that Plaintiff's motion to
reconsider (Doc. #15) is denied.