Palmer v. Berkson, et al.

Filing 25

ORDER Denying Plaintiff's Motion for Reconsideration 23 , signed by District Judge Lawrence J. O'Neill on 3/18/14. 21-Day Deadline. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WILL MOSES PALMER, III

Case No. 1:11-cv-01882-LJO-MJS (PC)

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Plaintiff,

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v.
(ECF No. 23)

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ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION

DR. RICHARD P. BERKSON, et al.,
FILING FEE DUE IN FULL WITHIN
TWENTY-ONE DAYS

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Defendants.

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Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant

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to 42 U.S.C. § 1983. He is pursuing a due process claim against Defendants Clement and

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Huang. On January 21, 2014, the District Judge assigned to this case adopted Findings

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and Recommendations (“F&R’s”) revoking Plaintiff’s in forma pauperis (“IFP”) status and

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requiring payment of the filing fee in full within twenty-one days. Plaintiff appealed to the

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Ninth Circuit. The appeal was dismissed on March 14, 2014 for failure to pay required fees.

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(ECF No. 24.)

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Before the Court is Plaintiff’s March 10, 2014 motion for reconsideration of the order

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dismissing complaint (sic) which the Court construes as seeking reconsideration of the

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January 21, 2014 order revoking IFP status and requiring payment of the filing fee.
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I.

LEGAL STANDARD
Rule 60(b)(6) allows the Court to relieve a party from an order for any reason that

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justifies relief. Rule 60(b)(6) is to be used sparingly as an equitable remedy to prevent

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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). Further, Local Rule 230(j) requires, in

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relevant part, that Plaintiff show “what new or different facts or circumstances are claimed

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

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grounds exist for the motion,” and “why the facts or circumstances were not shown at the

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time of the prior motion.”

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II.

DISCUSSION
The Court, in revoking Plaintiff’s IFP status took notice of the following cases which it

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counted as strikes: 1) Palmer v. Lamarque, 3:03-cv-00956-SI (C.D. Cal.), ECF No. 6

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(dismissed May 16, 2003, for failure to state a claim), 2) Palmer v. Johnson, 2:05-cv-

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07121-UA-E (C.D. Cal.), ECF No. 2 (dismissed November 2, 2005, for failure to state a

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claim), and 3) Palmer v. Johnson, 2:05-cv-08547-ABC (C.D. Cal.), ECF No. 24 (dismissed

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December 1, 2006, for failure to state a claim).
Plaintiff did not object to the F&R’s. He does not now show cause why he did not

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timely object to the F&R’s on grounds asserted in the instant motion.

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Plaintiff argues that the Court erred in counting the Johnson cases as strikes. He

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claims those cases were dismissed based upon Defendant’s judicial immunity which he

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contends is not a strike under 28 U.S.C. § 1915(g). However, as discussed in the F&R’s,

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those cases were dismissed for failure to state a claim. Such dismissals are counted as

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strikes under § 1915(g). The case law cited by Plaintiff in his motion does not provide

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otherwise.
Plaintiff also argues the claims in this action “relate back” to his pending separate

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action, Palmer v. Woodford et al., E.D. Cal. Case No. 1:06-cv-00512, filed on May 26, 2006

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and that strikes incurred subsequent to that date are no bar.1 He reasons the Court must

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The Court notes Woodford was filed April 28, 2006.

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have applied relation back doctrine in finding cognizable claims in this action. The three

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strikes statute provides that:

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In no event shall a prisoner bring a civil action or appeal a judgment in a civil
action or 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). “Relation back is governed by Rule 15(c), Federal Rules of Civil

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Procedure, which provides that, in some circumstances, an amended pleading may relate

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back for purposes of the statute of limitations to the time when the original pleading was

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filed.” In re Cases Filed by DIRECTV, Inc., 344 F.Supp.2d 647, 651 (D. Ariz. 2004). This

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action was filed November 14, 2011 separately from Woodford and does not relate back to

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the filing date of Woodford. The Court does not have an amended complaint before it. The

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Court takes notice that the instant Defendants and claims were dismissed without prejudice

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from Woodford on October 12, 2011.2 (See Woodford, ECF No. 72.) The filing of this

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action, a new complaint against these Defendants, does not relate back to filing of the prior

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action. See Id., at 651-52. Plaintiff points to nothing in this action or Woodford that provides

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otherwise.

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Plaintiff includes with his instant motion an August 4, 2011 order in Woodford that

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grants reconsideration and reinstates IFP status therein. (See ECF No. 23, Ex. 1.) The

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Woodford court took that action because it determined that dismissal in Palmer v.

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Crawford, N.D. Cal. Case No. 3:03-cv-01271-SI, which it had counted as a strike, was

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based on Plaintiff’s voluntary withdrawal of the suit and thus not a strike under § 1915(g).

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The Crawford case was not counted as a strike in this action. The August 4, 2011 order in

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Woodford does not support the relief Plaintiff now seeks.

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Plaintiff does not identify any error of law or fact in the Court’s January 21, 2014

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The court may take judicial notice of court records. See Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994);
MGIC Indem. Co. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986).

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order revoking his IFP status and requiring payment of the filing fee.

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III.

ORDER

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For the reasons stated above, it is HEREBY ORDERED that:

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1.

Plaintiff’s motion for reconsideration (ECF No. 23) is DENIED,

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2.

Plaintiff shall PAY THE $400 FILING FEE in full within twenty-one days of
service of this Order, and

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3.

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If Plaintiff fails to pay the $400 filing fee in full within twenty-one days of

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service of this Order, all pending motions shall be terminated and this action

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dismissed without prejudice.

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IT IS SO ORDERED.
Dated:

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/s/ Lawrence J. O’Neill

March 18, 2014

UNITED STATES DISTRICT JUDGE
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