Cohea v. Tucker et al

Filing 16

ORDER Denying Reconsideration (Motion At Docket 15 ), signed by Chief Judge Ralph R. Beistline on 9/30/2015. (Fahrney, E)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
DANNY JAMES COHEA,
Case No. 1:14-cv-01544-RRB
Plaintiff,
ORDER DENYING RECONSIDERATION
[MOTION AT DOCKET 15]

vs.
H. TUCKER, et al.,
Defendants.

At Docket 15 Danny James Cohea, a California state prisoner appearing pro se,
has filed a timely Motion to Vacate the Judgment.1 The record in this case shows that the
Court revoked Cohea’s in forma pauperis (“IFP”) status.2 Cohea then moved the Court to
reconsider that Order,3 which the Court denied.4 Subsequently, the Court dismissed the
Complaint and entered final judgment.5 Cohea has appealed from that judgment.6
A motion to reconsider is treated as a motion under Rule 59(e) if it is filed within 28
days after entry of judgment, otherwise it is treated as a motion brought under Rule 60(b).7

1

Fed. R. Civ. P. 59(e) or, alternatively, Fed. R. Civ. P. 60.

2

Docket 8.

3

Docket 9.

4

Docket 10.

5

Dockets 11 (Order Dismissing Case), 12 (Judgment).

6

Docket 13.

7

American Ironworks & Erectors, Inc. v. North Am. Const. Corp., 248 F.3d 892,
898–99 (9th Cir. 2001).
ORDER DENYING RECONSIDERATION [MOTION AT DOCKET 15]
Cohea v. Tucker, 1:14-cv-01544-RRB - 1

The pending motion was brought within the 28-day window of Rule 59. A court may grant
relief under Rule 59(e) under limited circumstances: (1) an intervening change of
controlling authority; (2) new evidence has surfaced; or (3) the previous disposition was
clearly erroneous and, if uncorrected, would work a manifest injustice.8 Cohea’s motion
invokes solely the third circumstance: clearly erroneous.
In revoking Cohea’s IFP status the Court did so based upon the three-strikes rule;9
specifically that he had not pleaded, nor could he plausibly plead, that he fell within the
imminent danger exception. In denying Cohea’s first motion for reconsideration, in addition
to rejecting Cohea’s arguments concerning the prior strikes, the Court noted that: “[e]ven
if the Court were to find in Cohea’s favor on the allegations of his Complaint, i.e., invalidate
the disciplinary action, it would not alleviate his unsubstantiated, speculative threat of
imminent danger of physical injury.”10
Nothing in Cohea’s current 12-page motion presents any argument relevant to the
application of the three-strikes rule to his Complaint that the Court has not previously
considered and rejected. Accordingly, Cohea’s request that the Court reconsider its Order
at Docket 8 directing him to pay the filing fee is hereby DENIED.
IT IS SO ORDERED this 30th day of September, 2015.
S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE
8

See Circuit City Stores v. Mantor, 417 F.3d 1060, 1064 (9th Cir. 2005); 389
Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir.1999).
9
10

28 U.S.C. § 1983(g).
Docket 10, p. 4 (footnote omitted).

ORDER DENYING RECONSIDERATION [MOTION AT DOCKET 15]
Cohea v. Tucker, 1:14-cv-01544-RRB - 2