Love v. Cate et al

Filing 20

ORDER DENYING Plaintiff's 11 Motion for Reconsideration ; ORDER DENYING Plaintiff's 17 Motion to Proceed In Forma Pauperis signed by District Judge Lawrence J. O'Neill on 1/25/2012. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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CARL R. LOVE,

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Plaintiff,

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CASE NO. 1:11-CV-01919-LJO-DLB PC
ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION (DOC. 11)

v.
ORDER DENYING PLAINTIFF’S MOTION
TO PROCEED IN FORMA PAUPERIS (DOC.
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MATTHEW CATE, et al.,

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Defendants.
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Plaintiff Carl R. Love (“Plaintiff”) is an inmate in the custody of the California

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Department of Corrections and Rehabilitation, proceeding pro se in this civil rights action

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pursuant to 42 U.S.C. § 1983. On December 9, 2011, the Court dismissed this action as

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duplicative of the action filed as Case No. 1:11-cv-1903-SKO PC, Love v. Cate, et al. Pending

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before the Court is 1) Plaintiff’s motion for reconsideration, filed December 20, 2011, and 2)

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Plaintiff’s motion to proceed in forma pauperis on appeal, filed January 19, 2012.

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I.

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Motion For Reconsideration
Because Plaintiff appeals from a final judgment of the Court within twenty-eight days

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after the entry of judgment, the Court construes the motion as one pursuant to Rule 59(e) of the

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Federal Rules of Civil Procedure.

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In general, there are four basic grounds upon which a Rule 59(e) motion may be
granted: (1) if such motion is necessary to correct manifest errors of law or fact
upon which the judgment rests; (2) if such motion is necessary to present newly
discovered or previously unavailable evidence; (3) if such motion is necessary to
prevent manifest injustice; or (4) if the amendment is justified by an intervening
change in controlling law.

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Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011). “Since specific grounds for a

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motion to amend or alter are not listed in the rule, the district court enjoys considerable discretion

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in granting or denying the motion.” McDowell v. Calderon, 197 F.3d 1253, 1255 n.1 (9th Cir.

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1999) (en banc) (per curiam) (internal quotation marks omitted). Amending a judgment after its
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entry remains “an extraordinary remedy which should be used sparingly.” Id. (internal quotation

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marks omitted). This Court’s Local Rule 230(j) requires a party seeking reconsideration to

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

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exist or were not shown upon such prior motion, or what other grounds exist for the motion . . .

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and . . . why the facts or circumstances were not shown at the time of the prior motion.”

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Plaintiff presents no argument that merits reconsideration. This action is duplicative of

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Case No. 1:11-cv-1903-SKO PC, and should not proceed. Plaintiff is not permitted to proceed in

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two actions involving the same subject matter at the same time in the same court against the

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same defendants. Adams v. California Dept. of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007).

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It is irrelevant how or why a duplicative action was filed. The Court notes that Plaintiff

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continues to proceed in Case No. 1:11-cv-1903-SKO PC, and thus has not been prejudiced by the

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dismissal of this action.

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Accordingly, Plaintiff’s Rule 59(e) motion, filed December 20, 2011, is denied.
II.

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Motion To Proceed In Forma Pauperis
Pursuant to 28 U.S.C. § 1915(a)(3), “[a]n appeal may not be taken in forma pauperis if

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the trial court certifies in writing that it is not taken in good faith.” The Court finds that

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Plaintiff’s appeal is not taken in good faith. The appeal is frivolous for the reasons mentioned

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above regarding Plaintiff’s motion for reconsideration. See Hooker v. American Airlines, 302

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F.3d 1091, 1092 (9th Cir. 2002) (denial of in forma pauperis status appropriate where district

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court finds appeal to be frivolous). Accordingly, it is HEREBY ORDERED that Plaintiff’s

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motion to proceed in forma pauperis on appeal, filed January 19, 2012, is denied.

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IT IS SO ORDERED.

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Dated:
b9ed48

January 25, 2012

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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