Knapp v. Arlitz et al

Filing 29

ORDER denying 28 Motion for Reconsideration signed by Magistrate Judge Gerald B. Cohn on 10/19/2011. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ERIC CHARLES RODNEY K’NAPP

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CASE NO: 1:09-cv-00412-GBC (PC)

Plaintiff,

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v.

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ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION

ARLITZ, et al.,

(Doc. 28)
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Defendants.
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/

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I.

Plaintiff’s Motion for Reconsideration

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A.

Procedural History

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Plaintiff Eric Charles Rodney K’napp, a state prisoner proceeding pro se and in forma
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pauperis (“IFP”), filed this civil rights action pursuant to 42 U.S.C. § 1983 and California tort law
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on March 2, 2009. (Doc 1). On September 7, 2011, the Court revoked Plaintiff’s IFP status pursuant
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to 28 U.S.C. § 1915(g). (Doc. 22). On September 22, 2011, Plaintiff filed a notice of appeal. (Doc.
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23). On October 13, 2011, Plaintiff filed a motion for reconsideration based on a recent Ninth
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Circuit opinion, Silva v. Di Vittorio, --- F.3d ----, 2011 WL 4436248 (9th Cir. 2011), addressing a
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similar issue of the operative date to count dismissals as “strikes” under 28 U.S.C. § 1915(g). (Doc.
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28).
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B.

Standards for Reconsideration

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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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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 light of the recent Ninth Circuit opinion, the Court will address the implications of Silva

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v. Di Vittorio since it may present a question of superceding law. Upon review of Silva v. Di

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Vittorio, the Court finds that the Court’s order filed on September 7, 2011, revoking Plaintiff’s IFP

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status does not contradict the ruling in Silva v. Di Vittorio. Similarly as the Ninth Circuit, this Court

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in its order revoking IFP status filed on September 7, 2011, agreed with Adepegba v. Hammons, 103

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F.3d 383 (5th Cir.1996), in that a court cannot conclude whether a trial level dismissal counts as a

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strike until resolution of the appeal. (See Doc. 22 at 3). The Court finds that the Ninth Circuit’s

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agreement with Thompson v. Drug Enforcement Admin., 492 F.3d 428, 440 (D.C. Cir. 2007), does

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not contradict the Court’s revocation of Plaintiff’s IFP status. See Silva v. Di Vittorio, 2011 WL

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4436248 *5. In Silva v. Di Vittorio, the Ninth Circuit concluded that ‘[d]ismissals do not count as

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strikes until an appeal has been either waived or resolved.’ Silva v. Di Vittorio, 2011 WL 4436248
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*5 (quoting Thompson, 492 F.3d at 440). In this instance the Court did not count Plaintiff’s

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dismissal as a strike until after the appellate court affirmed the dismissal.

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Plaintiff contends that Knapp v. Knowles, et al., 2:06-cv-00453-GEB-GGH (E.D. Cal. June

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13, 2007) was not final until the appeal resolved. In the appellate case Knapp v. Knowles, et al.,

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07-16225 (9th Cir. 2008), the dismissal order was affirmed on September 26, 2008, and pursuant to

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its order on January 23, 2009, the Ninth Circuit’s order affirming the decision took effect on January

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23, 2009. Even assuming the latter date of January 23, 2009, was the determining date to count the

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underlying dismissal as a strike, that date is still prior to when Plaintiff filed this instant action on

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March 2, 2009. Therefore, there are still three strikes that would count against Plaintiff, even

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assuming that Plaintiff were correct.

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Plaintiff also contends that the fourth strike, Knapp v. Harrison, 2:06-cv-07702-JVS-RC

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(C.D. Cal September 12, 2008), was not final until the appeal resolved. In the appellate case Knapp

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v. Harrison, 08-56629 (9th Cir. 2009), the dismissal order was affirmed on March 5, 2009 and the

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decision took effect on March 5, 2009, three days after Plaintiff filed this present action. However,

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only after the appellate court affirmed the dismissal did the Court revoke Plaintiff’s IFP status

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pursuant to § 1915(g) on September 7, 2011. The Court finds that the underlying purpose of the

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decision in Silva v. Di Vittorio, is to preserve the appellate power to reverse underlying judgements

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and to prevent litigants from having strikes count against them in the event that the underlying third

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strike dismissal is reversed. See Silva v. Di Vittorio, 2011 WL 4436248 at *5 (‘[a] contrary rule

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would, within those narrow set of cases in which the third strike is appealed, effectively eliminate

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our appellate function.’ quoting Thompson, 492 F.3d at 440). The Court finds that where the

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appellate court has affirmed an underlying third strike dismissal after the date of filing the

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subsequent action but affirming a dismissal which occurred before the date of filing the subsequent

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action, revoking IFP status after the appellate affirmation date is consistent with Silva v. Di Vittorio,

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2011 WL 4436248 at *5.

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Having carefully reviewed Plaintiff’s arguments and the implications of Silva v. Di Vittorio

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in this present action, the Court finds that its order to revoke Plaintiff’s IFP status is supported by

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the record and by proper analysis. Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion

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for reconsideration (Doc. 28), filed October 13, 2011, is DENIED.

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IT IS SO ORDERED.

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Dated:
0jh02o

October 19, 2011
UNITED STATES MAGISTRATE JUDGE

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