Edmond v. Corrections Corp. ( 1998 )


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  •                                                                            F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    SEP 15 1998
    FOR THE TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    MICHAEL SEAN EDMOND,
    Plaintiff-Appellant,
    v.                                                   No. 98-1062
    (D.C. No. 97-D-1883)
    CORRECTIONS CORPORATION OF                             (D. Colo.)
    AMERICA, doing business as
    National Registered Agents, Inc.;
    WILLIAM WILSON, JR., Warden of
    the Bent County Correctional Facility,
    Defendants-Appellees.
    ORDER AND JUDGMENT           *
    Before ANDERSON, BARRETT,              and TACHA , Circuit Judges.
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
    ordered submitted without oral argument.
    Plaintiff-Appellant Michael Sean Edmond appeals from the district court’s
    order denying his motion for reconsideration of its order dismissing his civil
    rights complaint, which he brought pursuant to 42 U.S.C. § 1983.   1
    The district
    court dismissed his complaint sua sponte for failure to exhaust administrative
    remedies. See 42 U.S.C. § 1997e(a). Appellant admitted in his complaint that he
    had not exhausted his administrative remedies through the prison grievance
    process. He explained that some of his grievances had gone unanswered, and that
    he had been transferred to a new place of incarceration before he had the
    opportunity to complete the grievance process. In ordering the dismissal of his
    complaint, the district court found that appellant failed to actively proceed with
    his grievances through the process provided to him.
    1
    Appellant filed his motion to reconsider more than ten days after the court’s
    judgment had entered; it is therefore properly construed as a motion pursuant to
    Fed. R. Civ. P. 60(b). An appeal from the denial of such a motion “raises for
    review only the district court’s order of denial and not the underlying judgment
    itself.” Van Skiver v. United States , 
    952 F.2d 1241
    , 1243 (10th Cir. 1991). The
    wording of appellant’s notice of appeal suggests that he may have intended to
    appeal from the underlying order of dismissal as well as from the order denying
    his motion for reconsideration. We need not concern ourselves with appellant’s
    intent, however, because he filed his notice of appeal too late to appeal from the
    underlying dismissal.
    -2-
    In his motion for reconsideration, appellant presented additional arguments
    concerning his failure to exhaust his administrative remedies. He argued, inter
    alia, that the prison administration had hindered his ability to exhaust his claims;
    that he could no longer exhaust the claims because they were time-barred under
    the inmate grievance procedure; and that 42 U.S.C. § 1997e(a) is unconstitutional.
    Without considering the merits of his new arguments, the district court concluded
    that the points which appellant presented should have or could have been argued
    in his complaint. Accordingly, it denied his motion for reconsideration. We
    review this decision for abuse of discretion.     See United States v. Castillo-Garcia   ,
    
    117 F.3d 1179
    , 1197 (10th Cir.),    cert. denied, 
    118 S. Ct. 395
    (1997).
    It appears that in denying the motion for reconsideration, the district court
    relied on our principle that “arguments raised for the first time in a motion for
    reconsideration are not properly before the court and generally need not be
    addressed.” 
    Id. That principle
    is inapplicable here because of appellant’s pro se
    status and the sua sponte dismissal of his complaint. Appellant had no
    opportunity to present argument concerning exhaustion other than in his motion
    for reconsideration.
    We nevertheless affirm the order of dismissal. We have reviewed each of
    appellant’s arguments concerning the exhaustion issue and have determined that
    -3-
    they lack merit. The district court acted within its discretion in denying
    appellant’s motion for reconsideration.
    The judgment of the United States District Court for the District of
    Colorado is AFFIRMED.     2
    Entered for the Court
    Deanell Reece Tacha
    Circuit Judge
    2
    The Order to Show Cause dated May 15, 1998, is discharged. Appellant is
    reminded, however, of his continued duty to make partial payments toward the
    scheduled filing fee for this action. See 28 U.S.C. § 1915(b)(2).
    -4-
    

Document Info

Docket Number: 98-1062

Filed Date: 9/15/1998

Precedential Status: Non-Precedential

Modified Date: 4/17/2021