F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
March 23, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
LEON K. GLA DW ELL,
Plaintiff-Appellant, No. 06-1282
v. (D. Colorado)
R AN D Y SC OFIELD ; STER LING (D.C. No. 06-CV-698-ZLW )
C ORREC TIO N A L FA CILITY ,
Defendants-Appellees.
OR D ER AND JUDGM ENT *
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
After examining Appellant’s brief and the appellate record, this court has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G ).
The case is therefore ordered submitted without oral argument.
Appellant Leon K. Gladwell, a state prisoner incarcerated in Colorado, filed
a pro se complaint pursuant to 42 U.S.C. § 1983 asserting violations of his federal
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
civil rights. The district court granted Gladwell’s motion to proceed in forma
pauperis and ordered Gladwell to pay an initial partial filing fee of $1.00 or show
cause why he had no means by which to pay the initial fee. See 28 U.S.C.
§ 1915(b)(1). Gladwell was also warned that his complaint would be dismissed if
he failed to either pay the initial partial filing fee or show cause within thirty
days. Although Gladwell filed a motion requesting the district court to direct
automatic deductions from his state prison account, 1 he did not pay the partial
filing fee or show cause why he had no means to pay the fee. Consequently, the
district court dismissed the complaint without prejudice. Gladwell then filed a
“M otion for Reconsideration.” That motion was denied, as w as G ladw ell’s
subsequent “M otion to Amend Order of Dismissal of M otion to Reconsider.”
Gladwell then brought this appeal challenging the dismissal of his complaint and
the denial of his motions asking for reconsideration.
This court reviews for abuse of discretion a district court’s dismissal
without prejudice for failure to comply with a court order. See C osby v. M eadors,
351 F.3d 1324, 1326 (10th Cir. 2003). The federal rules do not recognize a
motion to reconsider. A litigant seeking reconsideration must file a motion to
alter or amend judgment pursuant to Fed. R. Civ. P. 59(e), or a motion seeking
relief from judgment pursuant to Fed. R. Civ. P. 60(b). See Van Skiver v. United
States, 952 F.2d 1241, 1243 (10th Cir. 1991). Gladwell’s “M otion for
1
Gladwell’s motion was denied.
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Reconsideration” is a timely Rule 59(e); his “M otion to Amend Order of
Dismissal of M otion to Reconsider” is a motion seeking relief from judgment
under Rule 60(b). The denials of Gladwell’s motions are reviewed for abuse of
discretion. Price v. Philpot, 420 F.3d 1158, 1167 n.9 (10th Cir. 2005).
At the time the district court dismissed his complaint, the record confirms
Gladwell had not paid the appellate filing fee or shown cause why he could not
pay. In his appellate brief, Gladwell does not explain why he was unable to pay
the fee within the thirty-day period set out in the court’s show cause order. Thus,
the district court did not abuse its discretion when it dismissed Gladw ell’s
complaint on M ay 24, 2006. 2 In his M otion for Reconsideration, Gladwell
informed the district court the filing fee had been paid. Noting the record belied
that assertion, the district court denied the motion. Our review of the record
confirms the filing fee had not been paid. Accordingly, the district court did not
abuse its discretion when it denied Gladwell’s Rule 59(e) motion.
Finally, Gladwell is entitled to relief under Rule 60(b) only if he can satisfy
one or more of the six grounds set out in the Rule. See Van Skiver, 952 F.2d at
1243. Gladw ell asserted before the district court that prison officials were
improperly thwarting his attempts to pay the filing fee by refusing to approve his
2
The civil rights violations alleged by Gladwell occurred on July 13, 2004.
The district court dismissed his complaint without prejudice on M ay 24, 2006,
leaving him free to refile. See Blake v. Dickason, 997 F.2d 749, 750-51 (10th
Cir. 1993) (applying a two-year statute of limitations to § 1983 actions brought
by Colorado plaintiffs).
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requests for money orders. Attached to G ladw ell’s Rule 60(b) motion were
copies of his money order request and his inmate account statement. The money
order request indicates it was denied for insufficient funds. Gladwell argued the
denial w as improper because his account contained sufficient funds at the time.
The documents provided by Gladwell appear to confirm this assertion. In its
order denying Gladwell’s Rule 60(b) motion, however, the district court neither
discussed Gladwell’s argument nor provided any justification for its denial of his
motion. W e conclude this failure to consider the basis for Gladwell’s Rule 60(b)
motion amounts to a failure to exercise discretion which constitutes an abuse of
that discretion. See Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997)
(“A clear example of an abuse of discretion exists w here the trial court fails to
consider the applicable legal standard or the facts upon which the exercise of its
discretionary judgment is based.”). Accordingly, we reverse the denial of
Gladwell’s Rule 60(b) motion and remand the matter to the district court to
consider the grounds raised by Gladwell in support of his Rule 60(b) motion and
for any further proceedings consistent with this opinion. Gladwell’s motion to
proceed in forma pauperis on appeal is granted.
ENTERED FOR THE COURT
M ichael R. M urphy
Circuit Judge
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