De La Cruz v. Peterson, et al.

Filing 20

ORDER DENYING Plaintiff's 19 Motion to Alter or Amend the Judgment pursuant to Rule 59(e) and Request for Relief from Action as a Strike, signed by Magistrate Judge Barbara A. McAuliffe on 1/30/17. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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VICTOR DE LA CRUZ,
Plaintiff,

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v.

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A. PETERSON, et al.,
Defendants.

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I.

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Case No.: 1:14-cv-00418-BAM (PC)
ORDER DENYING PLAINTIFF’S MOTION TO
ALTER OR AMEND JUDGMENT PURSUANT TO
RULE 59(e), AND REQUEST FOR RELIEF FROM
ACTION AS A STRIKE
(ECF No. 19)

Introduction
Plaintiff Victor De La Cruz (“Plaintiff”) is a state prisoner proceeding in forma pauperis in this

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civil rights action filed pursuant to 42 U.S.C. § 1983. On June 20, 2016, the Court dismissed this

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action for the failure to state a claim upon which relief may be granted, and noted that the dismissal of

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the action would be considered a strike pursuant to 28 U.S.C. § 1915(g). (ECF No. 17.) Judgment was

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entered accordingly. (ECF No. 18.)
Currently before the Court is Plaintiff’s motion to alter or amend the judgment pursuant to

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Federal Rule of Civil Procedure 59(e), filed on July 18, 2016. Plaintiff also requests relief from the

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Court’s action imposing a strike under 28 U.S.C. § 1915(g), pursuant to Rule 60(b). (ECF No. 19.)

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II.

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Motion for Reconsideration
In support of Plaintiff’s motion to alter or amend the judgment, he argues that his third

amended complaint provided additional facts connecting each defendant to a violation of his rights.
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Plaintiff further argues that the Court must have misunderstood or missed something in the third

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amended complaint when it determined he did not state a cognizable claim.
Generally, a motion for reconsideration of a final judgment is appropriately brought under

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Federal Rule of Civil Procedure 59(e). See Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985)

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(discussing reconsideration of summary judgment); see also Schroeder v. McDonald, 55 F.3d 454,

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458-59 (9th Cir. 1995). The motion must be filed no later than twenty-eight (28) days after entry of the

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judgment. See Fed. R. Civ. P. 59(e). Under Rule 59(e), three grounds may justify reconsideration: (1)

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an intervening change in controlling law; (2) the availability of new evidence; or (3) the need to

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correct clear error or prevent manifest injustice. See Kern-Tulare Water Dist. v. City of Bakersfield,

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634 F. Supp. 656, 665 (E.D. Cal. 1986), rev’d in part on other grounds, 828 F.2d 514 (9th Cir. 1987),

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cert. denied, 486 U.S. 1015 (1988); see also 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665

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(9th Cir. 1999); accord School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).
The Court finds no clear error or manifest injustice in its final order and judgment dismissing

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this action for the failure to state a claim. Plaintiff’s action concerned allegations that he was subjected

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to leaky and filthy cells, and he named over 25 defendants. Plaintiff was advised in prior orders that he

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must allege facts indicating that each defendant, by name, was aware of a specific harm to Plaintiff,

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and acted with disregard to that harm, to state a cognizable claim.
In Plaintiff’s third amended complaint, he made conclusory statements that the defendants

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should have known about cell flooding problems based on their positions, duties, and responsibilities.

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However, Plaintiff did not provide sufficient factual allegations giving rise to a reasonable inference

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that any defendant actually knew of a specific, serious harm or risk to him, and disregarded it. (ECF

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No. 16 ¶¶ 19-44.) The Court finds that it properly concluded that Plaintiff did not allege sufficient

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facts to state a cognizable claim, and that further leave to amend was not warranted in this case based

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upon his repeated failure to cure the deficiencies in his complaint.

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III.

Strike Pursuant to 28 U.S.C. 1915(g)

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Plaintiff also requests relief from the Court’s order indicating that the dismissal of this action

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would be considered a strike pursuant to 28 U.S.C. § 1915(g). Plaintiff asserts that his claim does not

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count as a strike because it was not frivolous or malicious, and he provided all the Court requested.
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Section 1915(g) states that a prisoner may not proceed IFP “if the prisoner has, on three or

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more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a

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court of the United States that was dismissed on the grounds that it was frivolous, malicious or fails to

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state a claim upon which relief could be granted.” § 1915(g). “When a district court disposes of an in

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forma pauperis complaint ‘on the grounds that [the claim] is frivolous, malicious, or fails to state a

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claim upon which relief may be granted,’ such a complaint is ‘dismissed’ for purposes of § 1915(g)”

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regardless of the manner in which the district court styles its dismissal. See El-Shaddai v. Zamora, 833

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F.3d 1036, 1042 (9th Cir. 2016) (quoting O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008); 28

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U.S.C. §1915(g)). A court reviewing whether the three-strikes rule applies will look to the substance

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of the dismissed lawsuit in order to determine whether it can be counted as a “strike.” Id. at 1047

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(citing Andrews v. King, 398 F.3d 1113, 1122 n.12 (9th Cir. 2005)).
The Court’s indication in its order that this dismissal should count as a strike pursuant to

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§1915(g) does not have any binding effect upon Plaintiff or any future court. If and when Plaintiff

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seeks to proceed in forma pauperis in a future action, that court will make an independent assessment

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as to whether the three-strikes rule applies in that case. The indication in this Court’s order that

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Plaintiff has incurred a strike because he failed to state a claim upon which relief may be granted here,

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provides clarity to Plaintiff and any future court making that analysis of the grounds the dismissal of

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this action. No “relief” shall be granted, as none is available or required.

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IV.

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Conclusion and Order
For these reasons, it is HEREBY ORDERED that Plaintiff’s motion to alter or amend the

judgment and for relief from action as a strike (ECF No. 19), is DENIED.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

January 30, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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