McClellan v. Kern County Sheriff's Office et al

Filing 164

ORDER denying 162 Motion for Reconsideration of order denying extension of time to pay filing fee signed by Magistrate Judge Michael J. Seng on 10/16/2017. (Lundstrom, T)

Download PDF
1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 GREGORY MCCLELLAN, 13 14 15 16 17 Plaintiff, v. KERN COUNTY SHERIFF’S OFFICE, et al., CASE NO. 1:10-cv-00386-LJO-MJS (PC) ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION OF ORDER DENYING EXTENSION OF TIME TO PAY FILING FEE (ECF No. 162) Defendants. 18 19 Plaintiff is a prisoner proceeding pro se in this civil rights action pursuant to 42 20 U.S.C. § 1983. On January 15, 2016, the Undersigned denied Plaintiff’s request for 21 leave to proceed in form pauperis. (ECF No. 141.) Plaintiff appealed. (ECF No. 144.) On 22 August 15, 2017, the Ninth Circuit Court of Appeals affirmed the decision. (ECF No. 23 154.) On September 11, 2017, the District Judge assigned to this case ordered Plaintiff 24 to pay the filing fee in full within fourteen days. (ECF No. 156.) Plaintiff was warned that 25 failure to comply would result in dismissal of the action. (Id.) Plaintiff sought a sixty-day 26 extension of time to pay the fee. (ECF No. 157.) The Undersigned denied the request 27 but extended the deadline to October 3, 2017. (ECF No. 158.) The deadline passed and 28 Plaintiff did not submit the filing fee. Instead, on September 29, 2017, Plaintiff filed a 1 motion for the appointment of counsel. (ECF No. 159.) Therein, he asks, “What is the 2 filing fee?” (Id.) On October 4, 2017, the District Judge assigned to this case dismissed 3 the action for failure to pay the filing fee and entered judgment of dismissal. (ECF Nos. 4 160; 161.) 5 On October 5, 2017, Plaintiff filed a motion for reconsideration of the 6 Undersigned’s Order denying his motion for extension of time to pay the filing fee. (ECF 7 No. 162.) In the motion, Plaintiff claims that his appeal to the Ninth Circuit is not yet final. 8 (Id.) He asks for an additional 30 days to pay the filing fee. (Id.) 9 “A motion for reconsideration should not be granted, absent highly unusual 10 circumstances, unless the . . . court is presented with newly discovered evidence, 11 committed clear error, or if there is an intervening change in the controlling law,” Marlyn 12 Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009). 13 “A motion for reconsideration may not be used to raise arguments or present evidence 14 for the first time when they could reasonably have been raised in earlier litigation.” Id. 15 Furthermore, “‘[a] party seeking reconsideration must show more than a disagreement 16 with the Court’s decision, and ‘recapitulation . . .’” of that which was already considered 17 by the court in rendering its decision. U.S. v. Westlands Water Dist., 134 F.Supp.2d 18 1111, 1131 (E.D. Cal. 2001) (quoting Bermingham v. Sony Corp. of Am., Inc., 820 F. 19 Supp. 834, 856 (D. N.J. 1992)). Similarly, Local Rule 230(j) requires that a party seeking 20 reconsideration show that “new or different facts or circumstances are claimed to exist 21 which did not exist or were not shown upon such prior motion, or what other grounds 22 exist for the motion[.]” 23 Plaintiff does not present newly discovered evidence, nor does he demonstrate 24 that this Court committed clear error or that there was an intervening change in the law. 25 On September 6, 2017, the Ninth Circuit entered a Mandate on the docket in this matter 26 that it’s Order (ECF No. 153) denying Plaintiff’s appeal took effect on that date. (ECF No. 27 155.) That is the law of this case. Based upon that Mandate, this Court required Plaintiff 28 2 1 to pay the filing fee by September 23, 2017 (ECF No. 156), and then extended that 2 deadline to October 3, 2017 (ECF No. 158.) Plaintiff did not pay the fee by that deadline, 3 and now asks for additional time to do so. (ECF No. 162.) Plaintiff’s motion for 4 reconsideration merely reiterates his prior requests and offers no basis for 5 reconsideration.. 6 7 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion for reconsideration (ECF No. 162) is DENIED. His case has been dismissed. It remains closed. 8 9 10 11 IT IS SO ORDERED. Dated: October 16, 2017 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?