IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02555-LTB

ANDRE L. GARLINGTON,

Plaintiff,

v.

KIT CARSON CORRECTIONAL FACILITY/CCA,

WARDEN VANCE EVERETTE, KCCC/CCA, and

UM TAMERA COPPER, KCCC/CCA,

Defendants.

ORDER DENYING MOTION TO RECONSIDER

Plaintiff, Andre L. Garlington, a state prisoner who is in the custody of the

Colorado Department of Corrections (DOC) filed a pro se letter on December 1, 2011,

requesting that his case be reopened. The Court must construe the letter liberally

because Mr. Garlington is a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-

21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The letter, therefore,

will be construed as a Motion to Reconsider and will be denied for the reasons stated

below. 

A litigant subject to an adverse judgment, and who seeks reconsideration by the

district court of that 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). Mr. Garlington filed the Motion to Reconsider within twenty-eight days

after the Order of Dismissal and the Judgment were entered in the instant action. The

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Court, therefore, finds that the Motion to Reconsider is filed pursuant to Rule 59(e). See

Fed. R. Civ. P. 59(e).

The three major grounds that justify reconsideration under Rule 59(e) are: (1) an

intervening change in the controlling law; (2) the availability of new evidence; and (3)

the need to correct clear error or prevent manifest injustice. See Servants of the

Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Upon consideration of the

motion to reconsider and the entire file, the Court concludes that Mr. Garlington fails to

demonstrate that any of the grounds justifying reconsideration exist in his case. 

Mr. Garlington initiated this action by filing a Prisoner Complaint and a Motion

and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 on September 29,

2011. On October 12, 2011, Magistrate Judge Boyd N. Boland granted Mr. Garlington

leave to proceed pursuant to 28 U.S.C. § 1915. The October 12 Order required Mr.

Garlington to pay the full amount of the $350.00 filing fee in installments and directed

him to pay an initial partial filing fee of $3.00 within thirty days or to show cause why he

had no assets and no means to pay the initial fee by filing a current certified copy of his

trust fund account statement. The Order warned Mr. Garlington that if he failed to have

the initial partial filing fee sent to the Clerk of the Court by the designated deadline or to

show cause why he had no assets and no means by which to pay the initial fee the

Complaint would be dismissed without further notice.

On November 22, 2011, the Court entered an order dismissing Mr. Garlington’s

complaint without prejudice for failure to pay the initial partial fee of $3.00 or, in the

alternative, to show cause why he had no assets and no means to pay the initial fee. In

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doing so, the Court noted that Mr. Garlington had not communicated with the Court nor

submitted anything for filing since September 29, 2011

On November 25, 2011, Mr. Garlington paid an initial partial filing fee of $8.20. 

On December 1, 2011, Mr. Garlington submitted the Motion to Reconsider.

In Mr. Garlington’s Motion to Reconsider, he asserts that he asked DOC officials

to send a money order to the Court in a timely manner. He argues that he had “no

control over the fact that it took DOC 2.5 weeks to send this money.” Motion at 1. Mr.

Garlington has attached a “Department of Corrections Request for Money Order” to his

Motion to Reconsider. The Request for Money Order demonstrates that on November

9, 2011, Mr. Garlington asked that $8.20 be sent to the Court. Although not clear, it

also appears to demonstrate that Mr. Garlington’s request was rejected for insufficient

funds on November 21, 2011, and then re-submitted to the DOC on November 21,

2011. Regardless, the fact remains that Mr. Garlington did not submit his request for

money order to the DOC until November 9, 2011, a mere five days before his initial

partial filing fee was due on November 14, 2011. Mr. Garlington failed to communicate

with the Court and request an extension of time to submit his initial partial filing fee,

although he might reasonably have concluded that his initial partial filing fee would not

reach the Court by November 14, 2011. Indeed, based on delays in the DOC’s system,

and possible insufficient funds in Mr. Garlington’s account, the Court did not receive his

filing fee until November 25, 2011, eleven days after it was due. Further, the mere fact

that Mr. Garlington paid the initial partial filing fee on November 25, 2011, does not

excuse his failure to either notify the Court, pay the initial partial fee, or to show cause,

within the relevant deadline. 

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Accordingly, Mr. Garlington has not asserted any of the major grounds that would

justify reconsideration in his case, and the Motion to Reconsider will be denied. See

Servants of the Paraclete, 204 F.3d at 1012.

Mr. Garlington is reminded that the instant action was dismissed without

prejudice, and he may, if he desires, seek to file a new action. Accordingly, it is

ORDERED that the letter filed by Mr. Garlington on December 1, 2011, is

construed as a Motion to Reconsider and is DENIED. 

DATED at Denver, Colorado, this 8th day of December , 2011.

BY THE COURT:

 s/Lewis T. Babcock 

LEWIS T. BABCOCK, Senior Judge

United States District Court

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