govinfo:USCOURTS-okwd-5_24-cv-01063-2

IN THE UNITED STATES DISTRICT COURT FOR THE 
WESTERN DISTRICT OF OKLAHOMA 
 
CORY BRYAN NELSON, 
 
   Plaintiff, 
 
-vs- 
 
GARFIELD COUNTY DETENTION 
CENTER, et al., 
 
   Defendants. 
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) Case No. CIV-24-1063-F 
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ORDER 
 On January 13, 2025, the court entere d an order and judgment (doc. nos. 12 
and 13) dismissing plaintiff Cory Bryan Nelson’s 42 U.S.C. § 1983 action without 
prejudice to re-filing, pursuant to Rule 41(b), Fed. R. Civ. P., for failure to pay the 
initial partial filing fee of $16.38 as ordered by the court.   
On January 23, 2025, the court clerk received from the Department of 
Corrections a check for payment of the initial partial filing fee, along with copies of 
the court’s order and judgment underlining language about the failure to pay the 
initial partial filing fee.  The clerk of th e court returned the check and documents, 
along with a letter explaining that the action had been dismissed. 
Separately, on that same da y, the court clerk receiv ed and filed two letters 
from plaintiff.  In one letter, plaintiff as ks the court “to reconsider [its] finding to 
dismiss case no. CIV-24-1063-F.”  Doc. no. 15, ECF p. 1.  In the second letter, 
plaintiff asks “for the paperwork to get a court appointed Attorney[,]” “copies of 
[his] original petition[,]” and “paperwork to add David Henneke[,]” if a “decision is 
made to continue [this case].”  Doc. no. 14, ECF p. 1. 
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“The Federal Rules of Civil Proce dure do not recognize a ‘motion to 
reconsider.’”  Van Skiver v. United States, 952 F.2d 1241, 1243 (10 th Cir. 1991).  
Rule 59(e) of the Federal Rules of Civil Procedure, however, permits the filing of a 
motion to alter or amend a judgment within 28 days after entry of judgment.  Under 
Tenth Circuit precedent, “[n]o matter how styled, a motion will be deemed a Rule 
59(e) motion if it is served within th e specified time period and seeks relief 
appropriate to Rule 59(e) by questi oning the correctness of the underlying 
judgment.”  Hayes Family Trust v. State Farm Fire & Casualty Company, 845 F.3d 
997, 1004 (10th Cir. 2017). 
Initially, the court notes that plaintiff has not filed a “motion.”  He has instead 
made a request by way of a letter addressed to the undersigned.  Rule 7(b)(1) of the 
Federal Rules of Civil Procedur e requires that a “request for a court order must be 
made by motion.”  And Rule 7(b)(2) states  that the “rules governing captions and 
other matters of form in pleadings apply to motions and other papers.”  Rule 7(b)(2), 
Fed. R. Civ. P.  Although plaintiff has not complied w ith Rule 7(b)(1) and Rule 
7(b)(2), the court, acting in  its discretion, will construe  plaintiff’s letter asking to 
reconsider the dismissal of his case as a motion under Rule 59(e), Fed. R. Civ. P.1   
Grounds for Rule 59(e) relief include “ ‘(1) an intervening change in the 
controlling law, (2) [when] new evidence previously [was] unavailable, and (3) the 
need to correct clear error or prevent manifest inju stice.’” Hayes, 845 F.3d at 1004 
(quoting Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000)). 
With his motion, plaintiff states the law library supervisor had him fill out the 
wrong form for payment of the initial partial filing fee.  Instead of a payment of an 
initial partial filing fee, it was applied as a payment fo r postage.  The payment was 
 
1 The court warns plaintiff that, for any future reque sts for a court order, he must file a motion as 
required by Rule 7(b)(1), Fed. R. Civ. P.  
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returned to his institution as a postal cred it.  Plaintiff attaches to his motion the 
request for disbursement of legal costs, which he and the law library supervisor 
completed on December 17, 2024.  It show s a requested payment of “[$]16.38” for 
“Certified services to document initial f iling in court[,]” along with a requested 
payment of “[$].73” for first class postage.  Doc. no. 15-1.  The request is signed by 
the trust fund officer on December 19, 2024, indicating the requested sum was 
withdrawn from plaintiff’s trust fund draw a ccount.  Plaintiff states that his request 
for payment was made and th e money was withdrawn within the time to make the 
initial partial filing fee by the January 6, 2025 deadline.  He  asserts that the “Trust 
Fund has [] at this time sent you a check [] to cover the [$]16.38.”  He requests the 
court to accept the payment that has been se nt for the initial par tial filing fee, and 
“to allow [him] to continue with [his] civil lawsuit case.”  Doc. no. 15, ECF p. 4. 
Upon review, the court, acting in its discretion, concludes that its January 13, 
2025 judgment should be altered and amended.  The court will vacate the judgment 
as well as the order entered that same date.  The court will allow plaintiff 45 days to 
pay the $16.38 initial partial filing fee.  In the court’s view, plaintiff has presented 
new evidence, which indicates that plaintiff would have paid his initial partial filing 
fee by January 6, 2025, as required by the court’s December 10,  2024 order.  In 
addition, the court opines that vacati ng the order and judgment would prevent 
manifest injustice to plaintiff in light of the circumstances that have occurred. 
Accordingly, the letter of plaintiff Cory Bryan Nelson (doc. no. 15) construed 
as a motion pursuant to Rule 59 (e), Fed. R. Civ. P., is GRANTED.  The court’s 
January 13, 2025 judgment (doc. no. 13) a nd January 13, 2025 or der (doc. no. 12) 
are VACATED. 
A ruling on the Report and Recommenda tion of United States Magistrate 
Judge Amanda Maxfield Green is HELD in ABEYANCE.  Plaintiff’s request for 
appointment of an attorney (doc. no. 11) remains pending. 
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Plaintiff is ORDERED to pay the initial par tial filing fee of $16.38 no later 
than March 13, 2025 .  Failure of plaintiff to pay the initial partial filing fee of 
$16.38 by will result in the dismissal of this action without prejudice to re-filing.  No 
additional time to pay the initial partial fi ling fee of $16.38 is contemplated by the 
court. 
The court clerk is DIRECTED to send, along with a copy of this order, a copy 
of plaintiff’s original complaint (doc. no. 1) and a pro se prisoner civil rights 
complaint form for plaintiff to use to file  an amended complaint, if he so chooses, 
after payment of the initial partial filing fee as ordered. 
DATED this 24th day of January, 2025. 
 
  
  
 
 
 
 
24-1063p004.docx 
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