Ransom v. Martinez et al
Filing
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ORDER DENYING Plaintiff's 49 Motion for Injunctive Relief; ORDER DENYING Plaintiff's 52 Motion for Reconsideration; Plaintiff to PAY Filing Fee in Full within Thirty Days signed by Chief Judge Anthony W. Ishii on 9/29/2011. Filing Fee Due by 11/1/2011. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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BRYAN E. RANSOM,
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Plaintiff,
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v.
J. MARTINEZ, et al.,
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Defendants.
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CASE NO. 1:08-cv-01812-AWI-GBC (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR INJUNCTIVE RELIEF
(Doc. 49)
ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION
(Doc. 52)
PLAINTIFF TO PAY FILING FEE IN FULL
WITHIN THIRTY DAYS
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I.
Plaintiff’s Motion for Reconsideration
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A.
Procedural History
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Plaintiff Bryan E. Ransom, (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis (“IFP”) in this civil rights action seeking relief under 42 U.S.C. § 1983. On August 9, 2010,
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Defendants submitted a motion to revoke Plaintiff’s IFP status pursuant to 28 U.S.C. § 1915(g).
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(Doc. 24). On December 6, 2010, the Court submitted Findings and Recommendations in which the
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Court recommended that Plaintiff’s IFP status be revoked pursuant to 28 U.S.C. § 1915(g) and
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directed Plaintiff to pay filing fee or else action would be dismissed. (Doc. 41). On December 15,
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2010, Plaintiff appealed, on February 11, 2011, the District Court adopted the Magistrate Court’s
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Findings and Recommendations and on February 22, 2011, United States Court of Appeals for the
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Ninth Circuit processed the appeal. (Docs. 44, 45, 47). On March 7, 2011, Plaintiff filed a motion
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for emergency injunction and a motion for reconsideration pursuant to Rule 60(b) of the Federal
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Rules of Civil Procedure. (Docs. 49, 52). On April 20, 2011, the Ninth Circuit dismissed Plaintiff’s
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appeal. (Doc. 53). The court now addresses the pending motions.
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B.
Preliminary Injunction
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“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v.
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Natural Resources Defense Council, Inc., 129 S. Ct. 365, 376 (2008) (citation omitted). “A plaintiff
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seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is
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likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips
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in his favor, and that an injunction is in the public interest.” Id. at 374 (citations omitted). An
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injunction may only be awarded upon a clear showing that the plaintiff is entitled to relief. Id. at 376
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(citation omitted) (emphasis added). Federal courts are courts of limited jurisdiction and in
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considering a request for preliminary injunctive relief, the Court is bound by the requirement that
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as a preliminary matter, it have before it an actual case or controversy. City of Los Angeles v. Lyons,
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461 U.S. 95, 102 (1983); Valley Forge Christian Coll. v. Ams. United for Separation of Church and
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State, Inc., 454 U.S. 464, 471 (1982). Furthermore, the Court must have personal jurisdiction over
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the parties in order to issue an injunction against any individual and the Court may not enjoin
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individuals who are not yet served or before the court. Zepeda v. United States I.N.S., 753 F.2d 719,
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727 (9th Cir. 1983).
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As this case involves claims arising under the First, Fourteenth and RLUIPA, the Court does
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not have jurisdiction over Plaintiff’s emergency injunctive request to be prevented from being
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released into the general population yard. Therefore, Plaintiff’s motion for emergency injunctive
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relief is DENIED.
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C.
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Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the
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district court. The Rule permits a district court to relieve a party from a final order or judgment on
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grounds of: “(1) mistake, inadvertence, surprise, or excusable neglect; (3) fraud . . . of an adverse
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party, . . . or (6) any other reason justifying relief from the operation of the judgment.” Fed. R. Civ.
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P. 60(b). The motion for reconsideration must be made within a reasonable time, in any event “not
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more than one year after the judgment, order, or proceeding was entered or taken.” Id.
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Reconsideration
Motions to reconsider are committed to the discretion of the trial court. Combs v. Nick Garin
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Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 1983)
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(en banc). To succeed, a party must set forth facts or law of a strongly convincing nature to induce
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the court to reverse its prior decision. See e.g., Kern-Tulare Water Dist. v. City of Bakersfield, 634
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F.Supp. 656, 665 (E.D. Cal. 1986), aff’d in part and rev’d in part on other grounds, 828 F.2d 514
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(9th Cir. 1987), cert. denied, 486 U.S. 1015 (1988). The Ninth Circuit has stated that “[c]lause
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60(b)(6) is residual and ‘must be read as being exclusive of the preceding clauses.’” Corex Corp. v.
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United States, 638 F.2d 119 (9th Cir. 1981); accord LaFarge Conseils et Etudes, S.A. v. Kaiser
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Cement, 791 F.2d 1334, 1338 (9th Cir. 1986).
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‘extraordinary circumstances.’” Id. When filing a motion for reconsideration, Local Rule 230(j)(3)
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& (4) requires a party to show the “new or different facts or circumstances are claimed to exist which
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did not exist for the motion; and . . . why the facts or circumstances were not shown at the time of
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the prior motion.”
Accordingly, “the clause is reserved for
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In his motion for reconsideration, Plaintiff argues that he has demonstrated through his
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request for emergency injunctive relief and argues that the Court erred in denying Plaintiff’s motion
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to amend his complaint to add an imminent danger claim and erred in striking his amended
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opposition and surreply which added an imminent danger claim. (Doc. 52). As discussed above,
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the Court lacks the jurisdiction over Plaintiff’s additional claim in his request for emergency
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injunctive relief. Moreover, Plaintiff fails both to show new or different facts or circumstances
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which did not exist at the time the Court granted Defendants’ motion to revoke IFP. Plaintiff also
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fails to present any arguments and/or authority to show that the Court erred in denying his motion
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to amend his opposition and erred in striking Plaintiff’s surreply which added an imminent danger
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claim. Plaintiff’s presented no imminent danger claim in his original complaint which argues that
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Plaintiff is being denied bodily privacy by being forced to undergo strip searches in front of women
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staff, “notorious homosexuals, voyors [sic] and masterbaters.” (Doc. 1 at ¶¶ 12, 21). The complaint
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only mentions a threat of using pepper spray to obtain compliance with the strip search and never
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mentioned the use of pepper spray. (Doc. 1 at ¶¶ 27-33). Plaintiff simply fails to present any basis
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to justify reconsideration of this Court’s order granting revocation of Plaintiff’s IFP status.
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In Plaintiff’s motion for reconsideration, he attaches an amended complaint which adds an
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imminent danger claim, however, Plaintiff failed to seek leave of the court to amend. Fed. R. Civ.
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P. 15(a)(2). Even if the Court were to allow Plaintiff to amend his opposition to add an imminent
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danger claim, Plaintiff’s imminent danger claim still fails. In Plaintiff’s proposed amended
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opposition (Doc. 33), Plaintiff’s argues that he is in imminent danger of being pepper sprayed if he
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does not comply with the strip searches in the future. “Frequent filers sometimes allege that they are
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in imminent danger so they can avoid paying a filing fee.” Ciarpaglini v. Saini, 352 F.3d 328, 330
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(7th Cir. 2003). Threat of being pepper sprayed for failure to comply with a strip search does not
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amount to imminent danger. See Abdul-Akbar v. McKelvie, 239 F.3d 307 (3rd Cir.2001) (finding
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that being sprayed with pepper spray once does not constitute imminent danger).
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 73-305, this
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Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the
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Court finds its order adopting the Findings and Recommendations to grant revocation of Plaintiff’s
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IFP status is supported by the record and by proper analysis.
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Accordingly, IT IS HEREBY ORDERED that:
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1.
Plaintiff’s motion for injunctive relief, filed March 7, 2011, is DENIED;
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2.
Plaintiff’s motion for reconsideration, filed March 7, 2011, is DENIED; and
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3.
Plaintiff is required to pay the $350.00 filing fee in full within thirty (30) days or
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this action will be dismissed, without prejudice.
IT IS SO ORDERED.
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Dated:
0m8i78
September 29, 2011
CHIEF UNITED STATES DISTRICT JUDGE
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