Johnson v. Director of Corrections et al

Filing 8

ORDER denying 7 Motion for Reconsideration signed by District Judge Lawrence J. O'Neill on 9/13/2014. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ERIC JOHNSON,

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Plaintiff,

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vs.

1:14-cv-01171-LJO-GSA-PC
ORDER DENYING MOTION FOR
RECONSIDERATION
(Doc. 7.)

DIRECTOR OF CORRECTIONS, et al.,

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Defendants.

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I.

BACKGROUND

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Plaintiff Eric Johnson, a state prisoner proceeding pro se, filed this civil rights action

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pursuant to 42 U.S.C. § 1983 on July 28, 2014. (Doc. 1.) On July 31, 2014, the court issued an

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order dismissing this case under 28 U.S.C. § 1915(g), based on evidence of three prior “strikes”

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against Plaintiff, without prejudice to refiling with submission of the $400.00 filing fee. (Doc.

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4.) On September 2, 2014, Plaintiff filed a motion for reconsideration of the court’s order

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dismissing this case. (Doc. 7.)

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II.

MOTION FOR RECONSIDERATION

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Rule 60(b) allows the Court to relieve a party from an order for “(1) mistake,

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inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with

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reasonable diligence, could not have been discovered in time to move for a new trial under

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Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
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misconduct by an opposing party; (4) the judgment is void; or (6) any other reason that justifies

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relief.” Fed. R. Civ. P. 60(b). Rule 60(b)(6) “is to be used sparingly as an equitable remedy to

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prevent manifest injustice and is to be utilized only where extraordinary circumstances . . .”

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exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and

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citation omitted). The moving party “must demonstrate both injury and circumstances beyond

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his control . . . .”

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reconsideration of an order, Local Rule 230(k) requires Plaintiff to show “what new or different

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facts or circumstances are claimed to exist which did not exist or were not shown upon such

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prior motion, or what other grounds exist for the motion.”

Id. (internal quotation marks and citation omitted).

In seeking

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“A motion for reconsideration should not be granted, absent highly unusual

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circumstances, unless the district court is presented with newly discovered evidence, committed

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clear error, or if there is an intervening change in the controlling law,” Marlyn Nutraceuticals,

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

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marks and citations omitted, and “[a] party seeking reconsideration must show more than a

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disagreement with the Court’s decision, and recapitulation . . . ” of that which was already

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considered by the Court in rendering its decision,” U.S. v. Westlands Water Dist., 134

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F.Supp.2d 1111, 1131 (E.D. Cal. 2001). To succeed, a party must set forth facts or law of a

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strongly convincing nature to induce the court to reverse its prior decision. See Kern-Tulare

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Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and

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reversed in part on other grounds, 828 F.2d 514 (9th Cir. 1987).

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Plaintiff argues that the court misapplied the law in its July 31, 2014 dismissal order.

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Plaintiff argues that the “three strikes” provision of 28 U.S.C. 1915(g) does not apply to his

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three prior cases cited by the court, which were all filed in 1994, because the “three strikes”

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provision is not retroactive and therefore only applies to cases filed after the statute became

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effective in 1998.

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Discussion

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Plaintiff’s argument has no merit. The Prison Litigation Reform Act, Pub.L. No. 104-

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134, § 804(g), 110 Stat. 1321 (1996), which in part amended the portion of 28 U.S.C. § 1915
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which deals with “proceedings in forma pauperis,” was effective on April 26, 1996. Tierney v.

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Kupers, 128 F.3d 1310, 1311 (9th Cir. 1997).

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“[s]ection 1915(g)’s cap on prior dismissed claims applies to claims dismissed both before and

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after the statute’s effective date [and t]herefore, regardless of the dates of the dismissals, the

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analysis is the same: three prior dismissals on the stated grounds equals no in forma pauperis

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status in new filings, unless the prisoner is in imminent danger of serious physical injury.”

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Tierney at 1312 (emphasis added). Plaintiff’s case was dismissed based on three of Plaintiff’s

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prior cases dismissed as “strikes”: (1) 2:94-cv-01616-DFL-GGH PC Johnson v. State of

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California, et al. (E.D. Cal.) (dismissed 07/26/1995 for failure to state a claim); (2) 2:94-cv-

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01146-EJG-GGH PC Johnson v. Briscoe, et al. (E.D. Cal.) (dismissed 08/17/1995 for failure to

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state a claim); and (3) 2:94-cv-01925-WBSGGH PC Johnson v. Bonaccorso, et al. (E.D. Cal.)

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(dismissed 09/08/1995 for failure to state a claim). (Doc. 4 at 2 fn.1.) Under Tierney, the fact

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that these three cases were all filed and dismissed before 28 U.S.C. § 1915(g)’s effective date

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does not cause retroactivity concerns.

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The Ninth Circuit decided in Tierney that

Plaintiff has not set forth facts or law of a strongly convincing nature to induce the court

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to reverse its prior decision. Therefore, the motion for reconsideration shall be denied.

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III.

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CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion for

reconsideration, filed on September 2, 2014, is DENIED.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

September 13, 2014

UNITED STATES DISTRICT JUDGE

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