Bibbs v. Tilton et al

Filing 26

ORDER denying 25 Motion for Reconsideration signed by Magistrate Judge Gary S. Austin on 1/24/2014. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARTIN BIBBS,

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Plaintiff,

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vs.

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ORDER DENYING MOTION FOR
RECONSIDERATION
(Doc. 25.)

JAMES TILTON, et al.,

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1:11-cv-01012-GSA-PC

Defendants.

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I.

BACKGROUND

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Martin Bibbs (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on

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September 7, 2010. (Doc. 1.)

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On July 1, 2011, Plaintiff consented to the jurisdiction of a Magistrate Judge in this

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action, and no other parties have made an appearance. (Doc. 12.) Therefore, pursuant to

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Appendix A(k)(4) of the Local Rules of the Eastern District of California, the undersigned shall

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conduct any and all proceedings in the case until such time as reassignment to a District Judge

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is required. Local Rule Appendix A(k)(3).

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On January 13, 2014, the court entered an order dismissing this case, with prejudice,

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based on Plaintiff’s failure to state a claim upon which relief may be granted under § 1983 in

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the First Amended Complaint, and ordered that the dismissal is subject to the “three-strikes”

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///
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provision set forth in 28 U.S.C. § 1915(g). (Doc. 23.) On January 23, 2014, Plaintiff filed a

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motion for reconsideration of the order dismissing the case. (Doc. 25.)

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II.

MOTION FOR RECONSIDERATION

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The Court has discretion to reconsider and vacate a prior order. Barber v. Hawaii, 42

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F.3d 1185, 1198 (9th Cir. 1994); United States v. Nutri-cology, Inc., 982 F.2d 394, 396 (9th

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Cir. 1992). Motions to reconsider are committed to the discretion of the trial court. Combs v.

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Nick Garin Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460

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(9th Cir. 1983) (en banc). Motions for reconsideration are disfavored, however, and are not the

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place for parties to make new arguments not raised in their original briefs. Zimmerman v. City

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of Oakland, 255 F.3d 734, 740 (9th Cir. 2001); Northwest Acceptance Corp. v. Lynnwood

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Equip., Inc., 841 F.2d 918, 925-26 (9th Cir. 1988). Nor is reconsideration to be used to ask the

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court to rethink what it has already thought. Walker v. Giurbino, 2008 WL 1767040, *2

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(E.D.Cal. 2008). To succeed, a party must set forth facts or law of a strongly convincing nature

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to induce the court to reverse its prior decision. See Kern-Tulare Water Dist. v. City of

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Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and reversed in part on

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other grounds, 828 F.2d 514 (9th Cir. 1987). When filing a motion for reconsideration, Local

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Rule 230(j) requires a party to show the Anew or different facts or circumstances claimed to

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exist which did not exist or were not shown upon such prior motion, or what other grounds

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exist for the motion.@ L.R. 230(j).

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Plaintiff argues that because he did not proceed in forma pauperis in this case, the “three

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strikes” provision of 28 U.S.C. § 1915(g) does not apply to the dismissal of this case. Plaintiff

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argues that the statute only places a “three strikes” restriction on cases filed in forma pauperis.

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Section 1915(g) provides, in its entirety:
“In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action of proceeding under this section if the
prisoner has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a court of
the United States that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which relief
may be granted, unless the prisoner is under imminent danger of
serious physical injury.”
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28 U.S.C. § 1915(g). The plain language of the statute limits a prisoner from bringing a civil

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action in forma pauperis if the prisoner has had three prior cases dismissed as frivolous,

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malicious, or for failure to state a claim. Id. (emphasis added). However, there is no provision

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in the statute requiring that the “three prior cases dismissed” were brought in forma pauperis.

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Therefore, the fact that Plaintiff paid the filing fee for this case does not preclude dismissal of

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the case as subject to the “three strikes” provision of § 1915(g).

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Plaintiff’s remaining arguments do not set forth facts or law of a strongly convincing

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nature to induce the court to reverse its prior decision. Therefore, Plaintiff’s motion for

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reconsideration shall be denied.

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III.

Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion for

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CONCLUSION

reconsideration, filed on January 23, 2013, is DENIED.

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IT IS SO ORDERED.
Dated:

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January 24, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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