Stewart Manago v. Gonzalez et al

Filing 12

ORDER Denying 10 Motion for Reconsideration; ORDER Dismissing Action, Without Prejudice, for Failure to Pay Filing Fee, signed by Magistrate Judge Gerald B. Cohn on 2/9/12. CASE CLOSED. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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STEWART MANAGO,

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CASE NO: 1:11-cv-01269-GBC (PC)

Plaintiff,

ORDER DENYING MOTION FOR
RECONSIDERATION

v.
Doc. 10

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S.F. GONZALEZ, et al.,
ORDER DISMISSING ACTION, WITHOUT
PREJUDICE, FOR FAILURE TO PAY FILING
/ FEE

Defendants.

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I. Procedural Background

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On August 1, 2011, Plaintiff Stewart Manago (“Plaintiff”), a state prisoner proceeding pro

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se, filed this civil rights action pursuant to 42 U.S.C. § 1983. Doc. 1. On December 22, 2011, the

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Court revoked Plaintiff’s in forma pauperis status pursuant to the three strike provision under 28

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U.S.C. § 1915(g) and ordered Plaintiff to pay the $350.00 filing fee within thirty days. Doc. 9. On

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December 30, 2011, Plaintiff filed a motion for reconsideration, alleging that he qualifies for the

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imminent danger exception. Doc. 10.

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II. Legal Standard for Rule 60(b) Motion for Reconsideration

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Federal Rule of Civil Procedure 60(b) governs relief from orders of the district court. The

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Rule permits a district court to relieve a party from a final order or judgment on grounds of: “(1)

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mistake, inadvertence, surprise, or excusable neglect; . . . (3) fraud . . . by an opposing party, . . . or

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(6) any other reason that justifies relief.” Fed. R. Civ. P. 60(b). The motion for reconsideration must

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be made within a reasonable time. Id. Rule 60(b)(6) “is to be used sparingly as an equitable remedy

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to prevent manifest injustice and is to be utilized only where extraordinary circumstances . . .” exist.
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Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008). The moving party “must demonstrate both

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injury and circumstances beyond his control . . . .” Id. Local Rule 230(j) requires Plaintiff to show

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“what new or different facts or circumstances are claimed to exist which did not exist or were not

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shown upon such prior motion, or what other grounds exist for the motion.” “A motion for

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reconsideration should not be granted, absent highly unusual circumstances, unless the district court

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is presented with newly discovered evidence, committed clear error, or if there is an intervening

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change in the controlling law,” and it “may not be used to raise arguments or present evidence for

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the first time when they could reasonably have been raised earlier in the litigation.” Marilyn

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Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (emphasis

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in original).
III. Imminent Danger Exception to Three Strikes Provision

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The order revoking Plaintiff’s in forma pauperis status found that Plaintiff had three or more

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strikes, which occurred before Plaintiff filed this action on August 1, 2011. Doc. 9. Plaintiff does not

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dispute that he has three “strikes” but contends he qualifies for the imminent danger exception under

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§ 1915(g). Pl. Mot. Recons. at 3, Doc. 10. The three strikes provision precludes Plaintiff from

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proceeding in forma pauperis unless he was, at the time of filing the complaint, under imminent

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danger of serious physical injury. 28 U.S.C. § 1915(g). In Plaintiff’s complaint, he alleges retaliation,

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false gang validation, conspiracy, and infringements on his rights to jailhouse lawyering and

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association. Pl. Compl. at 20-24, Doc 1. From these allegations, the Court found that Plaintiff failed

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to make a “plausible allegation” that he faced imminent danger of serious physical injury at the time

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he filed his complaint. Doc. 9; Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). In

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Plaintiff’s motion for reconsideration, he contends that his false gang validation qualifies him for

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the imminent danger exception. Pl. Mot. Recons. at 3, Doc. 10. Plaintiff states that he could be

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housed with a rival gang member. Id. Plaintiff attached exhibits from 2004 through 2009 to prove

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that he is a member of the Project Watt Crips gang. Id. at 3 & 8-59.

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“[A]ssertions of imminent danger of less obviously injurious practices may be rejected as

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overly speculative or fanciful, when they are supported by implausible . . . allegations that the

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ongoing practice has produced past harm. See Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003)
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(‘Courts ... deny leave to proceed IFP when a prisoner’s claims of imminent danger are conclusory

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or ridiculous.’); Martin v. Shelton, 319 F.3d 1048, 1048 (8th Cir. 2003) (refusing to find an

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‘imminent danger’ based on ‘conclusory assertions that defendants were trying to kill [the inmate]

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by forcing him to work in extreme [weather] conditions despite his blood pressure condition’).”

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Andrews, 493 F.3d at 1057 n.11.

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Plaintiff’s vague allegation that he could be housed with a rival gang member due to “false

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gang validation” is not imminent danger. A prisoner seeking to invoke the imminent danger

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exception in § 1915(g) must make specific, credible allegations of imminent danger of serious

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physical harm. McNeil v. U.S., 2006 WL 581081 (W.D. Wash. Mar. 8, 2006) (citing Kinnell v.

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Graves, 265 F.3d 1125, 1127-28 (10th Cir. 2001) and White v. Colorado, 157 F.3d 1226, 1232 (10th

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Cir. 1998)). Vague and conclusory assertions regarding withheld medical treatment are insufficient

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to satisfy the imminent danger standard. White, 157 F.3d at 1231. See Beeson v. Copsey, 2011 WL

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4948218 (D. Idaho Oct. 17, 2011) (plaintiff’s allegations of “prison violence, reprisal, gov-action,

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loss of const. rights” as “vague, non-specific allegations [that] are insufficient to show imminent

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danger”); see also Pauline v. Mishner, 2009 WL 1505672 (D. Haw. May 28, 2009) (plaintiff’s vague

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and conclusory allegations of possible future harm to himself or others are insufficient to trigger the

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“imminent danger of serious physical injury” exception to dismissal under § 1915(g)); Cooper v.

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Bush, 2006 WL 2054090 (M.D. Fla. July 21, 2006) (plaintiff’s allegations that he will commit

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suicide, or that he has already attempted suicide and will do so again, are insufficient to show

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imminent danger); Luedtke v. Bertrand, 32 F. Supp. 2d 1074, 1077 (E.D. Wis. 1999) (“[plaintiff’s

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vague allegation of a conspiracy among the defendants to beat, assault, injure, harass and retaliate

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against him are not enough. These allegations are insufficient and lack the specificity necessary to

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show an imminent threat of serious physical injury.”).

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Therefore, in the Court’s order revoking Plaintiff’s in forma pauperis, the Court correctly

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found that Plaintiff’s allegations of retaliation, false gang validation, conspiracy, and infringements

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on his rights to jailhouse lawyering and association failed to make a “plausible allegation” that he

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faced imminent danger of serious physical injury at the time he filed his complaint. See Pl. Compl.

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at 20-24, Doc 1; see also Order Revoking IFP at 2, Doc. 9; Andrews, 493 F.3d at 1055.
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IV. Conclusion

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The Court previously ordered Plaintiff to submit the $350.00 filing fee within thirty days or

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the action would be dismissed, without prejudice. Doc. 9. More than thirty days have passed, and

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Plaintiff has not paid the filing fee.

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Accordingly, it is HEREBY ORDERED that:

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1.

Plaintiff’s motion for reconsideration of the Court’s order revoking his in forma
pauperis status is DENIED;

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2.

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This action is DISMISSED, without prejudice, for Plaintiff’s failure to pay the filing
fee;

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3.

The Clerk of the Court is directed to close this action; and

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4.

All pending motions are denied as moot.

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IT IS SO ORDERED.

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Dated:
0jh02o

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February 9, 2012
UNITED STATES MAGISTRATE JUDGE

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