United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW U.S. SENIOR DISTRICT JUDGE
matter is before the Court on two post-judgment motions filed
by Plaintiff, a Motion to Alter or Amend Judgment (ECF No.
16) and a Motion for Reconsideration (ECF No. 17). The two
motions are identical, and both are denied.
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).
motions, Mr. Caballero 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 was not filed out of time
because it was filed on December 21, 2016, within two years
of the accrual of his claim on March 5, 2015. However,
Plaintiff continues to confuse the state and federal courts.
He did not file his § 1983 action in this Court until
September 4, 2018, well beyond the two-year limitation
also continues to confuse habeas and civil rights actions. He
repeats the argument he made in response to the show cause
order that the statute of limitations should have been tolled
while he exhausted his claim in the state courts. As the
Court previously explained, since this is a § 1983
action, state court exhaustion was not required, nor does it
toll the limitation period. See Bynum v. Municipality,
City & Cty. of Denver, 550 Fed.Appx. 560, 562 (10th
Cir. 2013), citing Coleman v. Faulkner, 697 F.2d
1347, 1349 (10th Cir. 1982) (per curiam) (“Section 1983
does not require exhaustion of state judicial
remedies.”). For Plaintiff to qualify for equitable
tolling, he had to show that the defendants did
“something that amounted to an ‘affirmative
inducement to plaintiff to delay bringing the
action'” (see Friends University v. W.R. Grace
& Co., 608 P.2d 936, 941 (Kan. 1980)) or that he has
been pursuing his rights diligently and some extraordinary
circumstance prevented timely filing (see McQuiggin v.
Perkins, 569 U.S. 383, 391 (2013)). Plaintiff did not
show that Defendants affirmatively induced him into delaying
his filing of this § 1983 action or that any
extraordinary circumstance prevented him from filing within
the limitation period. The only circumstance Plaintiff
described was a misunderstanding about exhaustion of
remedies. Ignorance of the law does not entitle a person to
equitable tolling of the limitation period. Harrison v.
United States, 438 Fed.Appx. 665, 668 (10th
Cir. 2011) (unpublished opinion). Because Plaintiff did not
establish a factual basis for tolling the limitation period,
Plaintiff's action was untimely.
the Court finds no merit to Plaintiff's arguments and
finds no modification is required to prevent manifest
injustice, the Court denies Plaintiff's motions.
IS THEREFORE ORDERED that Plaintiff's Motion to
Alter or Amend Judgment (ECF No. 16) and Motion for
Reconsideration (ECF No. 17) are denied.