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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO 

Honorable Marcia S. Krieger 

Civil Action No. 11-cv-02656-MSK-MJW 

BRIAN M. GROSS, 

 Plaintiff, 

v. 

STEVE M. VICALVI, 

 Defendant. 

ORDER DENYING MOTIONS 

FOR RECONSIDERATION 

THIS MATTER comes before the Court on four Motions for Reconsideration (## 99, 

101, 102, 103) filed by the pro se Plaintiff Brian M. Gross.1

 

 Mr. Gross seeks reconsideration of the Court’s Order (#96) dismissing his claims against 

Defendant Steve M. Vicalvi, and the subsequent entry of judgment against him. The Court, in 

adopting the Recommendation (#94) of the Magistrate Judge, dismissed his claims for failure to 

appear, failure to prosecute, and failure to comply with court orders. 

Now, Mr. Gross asks the Court to reconsider that ruling. In his motions, Mr. Gross does 

not rely on any particular rule. However, because his first motion was filed within 28 days after 

the entry of the judgment, the Court construes his motions together as a request to alter or amend 

 

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 In considering Mr. Gross’s filings, the Court is mindful of his pro se status, and accordingly 

reads his pleadings liberally. Haines v. Kerner, 404 U.S. 519, 510-21 (1972). However, such 

liberal construction is intended merely to overlook technical formatting errors and other defects 

in Mr. Gross’s use of legal terminology and proper English. Hall v. Bellmon, 935 F.3d 1106, 

1110 (10th Cir. 1991). Pro se status does not relieve Mr. Gross of the duty to comply with the 

various rules and procedures governing litigants and counsel or the requirements of the 

substantive law. See McNeil v. U.S., 508 U.S. 106, 113 (1993; Ogden v. San Juan County, 32 

F.3d 452, 455 (10th Cir. 1994). 

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the judgment under Fed. R. Civ. P. 59(e). Under this rule, there are three possible grounds that 

may warrant reconsideration: (1) an intervening change in the law, (2) new evidence that was 

previously unavailable, or (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). 

In each of his motions, Mr. Gross argues that his failure to appear, failure to prosecute, 

and failure to comply with court orders was not his fault because he “has spent a considerable 

amount of time hospitalized” and had no control over his medical problems. He advises that he 

has had one major and two minor heart attacks since December 2012, although he does not 

specify the dates of such events nor the dates of his hospitalizations for those or other reasons. 

He also states that he has been held at the Pueblo County Detention Center from February 11-26, 

2013 and March 15, 2013 through Aug. 7, 2013, but it does not appear that his detention has 

affected his ability to participate in this action as all of the motions at issue were filed while he 

has been detained. 

Although the Court is sensitive to Mr. Gross’s medical needs, on this record it finds that 

the circumstances do not warrant vacation of the judgment of dismissal and reinstatement of the 

case. In November 2012, prior to any alleged medical problem or detention, Mr. Gross failed to 

appear at a scheduling conference, failed to participate in filing a proposed scheduling order, and 

failed to request a continuance. Thereafter, he failed to respond to an Order to Show Cause 

(#87) or appear at the hearing set for December 17, 2012. He has failed to show how any 

hospitalization or medical condition affected his ability to perform these obligations. The 

Magistrate Judge’s Recommendation was sent to Mr. Gross at his address of record on January 

4, 2013, and it wqas not returned as undeliverable. No action was taken on it until April 14, 

2013, and it was not returned as undeliverable. Thus, presumptively, Mr. Gross received it, and 

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at no time between January and April filed an objection. No justification has been shown for Mr. 

Gross being unable to object to the Recommendation in a timely fashion. Moreover, Mr. Gross 

offers no objection to the Recommendation, other than the facts stated above. 

Accordingly, the Court finds that altering or amending the judgment is not warranted. 

Mr. Gross’s Motions for Reconsideration (#99, 101, 102, 103) are DENIED. 

Dated this 27th day of August, 2013. 

BY THE COURT:

 

 Marcia S. Krieger 

 Chief United States District Judge

 

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