Salim v. AUSA_SDNY Office

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Charlotte N. Sweeney
Civil Action No. 1:22-cv-03374-CNS-STV
MAMDOUH SALIM,
Plaintiff,
v.
AUSA_SDNY OFFICE and
ADX WARDEN,
Defendants.
ORDER
Before the Court is pro se Plaintiff’s Motion Under Rule 59 Requesting Court to
Alter or Modify its Order. ECF No. 93. For the following reasons, the Court denies
Plaintiff’s motion.
I. SUMMARY OF ORDER FOR PRO SE PLAINTIFF MAMDOUH SALIM
You filed an amended complaint on March 30, 2023, alleging Defendants violated
the Religious Freedom Restoration Act (RFRA) and the Administrative Procedure Act
(APA) in imposing certain Special Administrative Measures against you. ECF No. 12. On
August 7, 2023, Defendants moved to dismiss your amended complaint for failure to state
a claim. ECF No. 38. Defendants also moved to stay discovery pending the resolution of
their motion to dismiss. ECF No. 37. On August 31, 2023, Magistrate Judge Varholak
presided over a hearing during which he granted the motion to stay and explained his
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reasoning. ECF No. 48. On September 21, 2023, you objected to Magistrate Judge
Varholak’s order staying the case. ECF No. 58. On December 13, 2023, this Court
overruled your objections and affirmed and adopted the order granting the stay of
discovery. ECF No. 82. As a result of that order, the Court stayed discovery pending
resolution of Defendants’ motion to dismiss. Id. at 2, 7–8.
On January 22, 2024, you filed the instant motion for reconsideration of the Court’s
December 	13 	order. 	ECF 	No. 	93. 	Three 	days 	later, 	Magistrate 	Judge 	Varholak
recommended that Defendants’ motion to dismiss be granted in part and denied in part.
ECF No. 94.
After considering the arguments raised in your motion for reconsideration, the
Court is denying your motion. The Court will explain why it is doing so further below. This
Order will discuss the legal authority that supports this conclusion. As a result of this
Order, discovery will remain stayed consistent with its previous order staying discovery.
II. BACKGROUND
Plaintiff 	is a pro 	se prisoner serving a 	life 	sentence at the United States
Penitentiary, Administrative Maximum Facility in Florence, Colorado (ADX). See ECF No.
12 at 2. On March 28, 2023, Plaintiff filed his Amended Complaint alleging that
Defendants imposed Special Administrative Measures (SAMs) restricting Plaintiff from
communicating with his eldest son in violation of the RFRA, 42 U.S.C. 2000bb–1, and the
APA, 5 U.S.C. 701, et seq. Id., ¶¶ 1–18; see id. at 3, 27.
On August 4, 2023, Defendants moved to stay discovery pending resolution of
their motion to dismiss the Amended Complaint for failure to state a claim. ECF Nos. 37,
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38. Following a hearing on Defendants’ motion, Magistrate Judge Varholak granted the
motion to stay and gave a detailed verbal explanation for doing so. Plaintiff objected to
Magistrate Judge Varholak’s order to this Court, and the Court overruled Plaintiff’s
objection. Plaintiff then filed the instant motion asking this Court to reconsider its order
staying discovery pending resolution of Defendants’ motion to dismiss. ECF No. 93. On
February 12, 2024, Defendants filed a response to Plaintiff’s motion for reconsideration.
ECF No. 100.
III. LEGAL STANDARD
Because Plaintiff is proceeding pro se for the instant motion, this Court construes
his filings liberally; however, this Court does not assume the role of advocate for Plaintiff.
See Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991).
The 	Federal 	Rules 	of 	Civil 	Procedure 	do 	not 	provide 	for 	a 	motion 	for
reconsideration. Hatfield v. Bd. of Cnty. Comm’rs for Converse Cnty., 52 F.3d 858, 861
(10th Cir. 1995). And where, as here, “a party files a motion for reconsideration prior to
the entry of judgment or of a final order, [Federal Rules of Civil Procedure] 59(e) and
60(b) do not apply.” Duran v. Crandell, No. 10-cv-02490-PAB-KMT, 2012 WL 1649160,
at *1 (D. Colo. May 10, 2012). However, district courts have “plenary power to revisit and
amend interlocutory orders as justice requires,” and the standards are generally the same
as 	a 	motion 	for 	reconsideration. 	Id. 	There 	are 	three 	main 	grounds 	that 	justify
reconsideration: “(1) an intervening change in controlling law, (2) new evidence previously
unavailable, and (3) the need to correct clear error or prevent manifest injustice.” Servants
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of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Stated differently, “a
motion for reconsideration is appropriate where the court has misapprehended the facts,
a party’s position, or the controlling law.” Id. Such relief is “extraordinary and may only be
granted in exceptional circumstances.” Schmier v. McDonald’s LLC, 569 F.3d 1240, 1243
(10th Cir. 2009) (citation and quotations omitted).
IV. ANALYSIS
In his motion for reconsideration, Plaintiff largely fails to address the Court’s order
staying discovery. He instead focuses on the merits of his case and whether the Court
may properly consider certain documents when ruling on Defendants’ motion to dismiss.
The Court agrees with the Government that Plaintiff’s arguments are better suited for an
objection to Magistrate Judge Varholak’s recommendation on Defendants’ motion to
dismiss instead of a motion to reconsider the stay order.
As the Court explained in its stay order, the Court determined that discovery is not
necessary to resolve Defendants’ motion to dismiss for failure to state a claim and
therefore a stay was warranted in this case. ECF No. 82 at 7. The fact that Magistrate
Judge Varholak has now issued his recommendation on Defendants’ motion to dismiss
bore this out. ECF No. 94.
The Court finds that reconsideration is not warranted. Plaintiff has failed to show
an intervening change in controlling law, present new evidence not previously available,
or show any clear error or manifest injustice. Servants of the Paraclete, 204 F.3d at 1012.
And in light of Magistrate Judge Varholak recently issued recommendation, discovery will
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begin soon (absent a timely objection to the recommendation), eliminating Plaintiff’s
concerns surrounding the stay. Plaintiff’s motion, therefore, is denied.
V. CONCLUSION
Consistent with the above analysis, Plaintiff’s Motion Under Rule 59 Requesting
Court to Alter or Modify its Order, ECF No. 93, is DENIED.
DATED this 14th day of February 2024.
BY THE COURT:
______________________
Charlotte N. Sweeney
United States District Judge
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