Love v. Cate et al
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)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CARL R. LOVE,
CASE NO. 1:11-CV-01919-LJO-DLB PC
ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION (DOC. 11)
ORDER DENYING PLAINTIFF’S MOTION
TO PROCEED IN FORMA PAUPERIS (DOC.
MATTHEW CATE, et al.,
Plaintiff Carl R. Love (“Plaintiff”) is an inmate in the custody of the California
Department of Corrections and Rehabilitation, proceeding pro se in this civil rights action
pursuant to 42 U.S.C. § 1983. On December 9, 2011, the Court dismissed this action as
duplicative of the action filed as Case No. 1:11-cv-1903-SKO PC, Love v. Cate, et al. Pending
before the Court is 1) Plaintiff’s motion for reconsideration, filed December 20, 2011, and 2)
Plaintiff’s motion to proceed in forma pauperis on appeal, filed January 19, 2012.
Motion For Reconsideration
Because Plaintiff appeals from a final judgment of the Court within twenty-eight days
after the entry of judgment, the Court construes the motion as one pursuant to Rule 59(e) of the
Federal Rules of Civil Procedure.
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.
Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011). “Since specific grounds for a
motion to amend or alter are not listed in the rule, the district court enjoys considerable discretion
in granting or denying the motion.” McDowell v. Calderon, 197 F.3d 1253, 1255 n.1 (9th Cir.
1999) (en banc) (per curiam) (internal quotation marks omitted). Amending a judgment after its
entry remains “an extraordinary remedy which should be used sparingly.” Id. (internal quotation
marks omitted). This Court’s Local Rule 230(j) requires a party seeking reconsideration to
demonstrate “what new or different facts or circumstances are claimed to exist which did not
exist or were not shown upon such prior motion, or what other grounds exist for the motion . . .
and . . . why the facts or circumstances were not shown at the time of the prior motion.”
Plaintiff presents no argument that merits reconsideration. This action is duplicative of
Case No. 1:11-cv-1903-SKO PC, and should not proceed. Plaintiff is not permitted to proceed in
two actions involving the same subject matter at the same time in the same court against the
same defendants. Adams v. California Dept. of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007).
It is irrelevant how or why a duplicative action was filed. The Court notes that Plaintiff
continues to proceed in Case No. 1:11-cv-1903-SKO PC, and thus has not been prejudiced by the
dismissal of this action.
Accordingly, Plaintiff’s Rule 59(e) motion, filed December 20, 2011, is denied.
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
the trial court certifies in writing that it is not taken in good faith.” The Court finds that
Plaintiff’s appeal is not taken in good faith. The appeal is frivolous for the reasons mentioned
above regarding Plaintiff’s motion for reconsideration. See Hooker v. American Airlines, 302
F.3d 1091, 1092 (9th Cir. 2002) (denial of in forma pauperis status appropriate where district
court finds appeal to be frivolous). Accordingly, it is HEREBY ORDERED that Plaintiff’s
motion to proceed in forma pauperis on appeal, filed January 19, 2012, is denied.
IT IS SO ORDERED.
January 25, 2012
/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE
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?