Pierce v. Wagner et al

Filing 8

ORDER Denying 7 Plaintiff's Motion for Reconsideration of Order Denying Appointment of Counsel, signed by District Judge Dale A. Drozd on 3/31/16. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SEAVON PIERCE,

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Plaintiff,
v.

No. 1:16-cv-00045-DAD-JLT (PC)
ORDER DENYING PLAINTIFF'S MOTION
FOR RECONSIDERATION OF ORDER
DENYING APPOINTMENT OF COUNSEL
(Doc. No. 7)

WAGNER, et al ,
Defendants.

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Plaintiff, Seavon Pierce, a state prisoner proceeding pro se, filed this civil rights action on

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January 11, 2016. On January 27, 2016, findings and recommendations recommending that

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plaintiff’s application to proceed in in forma pauperis be denied were issued by the assigned

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magistrate judge. (Doc. No. 4.) Plaintiff filed objections (Doc. No. 5) which were considered in

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the order that issued on March 8, 2016 (Doc. No. 6), adopting the findings and recommendation

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in full. On March 21, 2016, plaintiff filed a motion which appears to seek reconsideration of the

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order denying his application to proceed in forma pauperis. (Doc. 24.)

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Federal Rule of Civil Procedure 60(b)(6) allows the Court to relieve a party from an order

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for any reason that justifies relief. Rule 60(b)(6) “is to be used sparingly as an equitable remedy

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to 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 his

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control . . . .” Id. (internal quotation marks and citation omitted). Further, Local Rule 230(j)

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requires, in relevant part, that Plaintiff show “what new or different facts or circumstances are

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claimed to exist which did not exist or were not shown upon such prior motion, or what other

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grounds exist for the motion,” and “why the facts or circumstances were not shown at the time of

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the prior motion.”

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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,” and it “may not be used to

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raise arguments or present evidence for the first time when they could reasonably have been

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raised earlier in the litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571

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F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted) (emphasis in

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original).

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Plaintiff has not shown any new or different facts or circumstances, newly discovered

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evidence, or an intervening change of law to support his motion. Plaintiff errantly argues that 42

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U.S.C. § 1983 and, concomitantly 28 U.S.C. § 1915, only apply to actions brought pursuant to

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Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),

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which provides a remedy for violation of civil rights by federal actors. Plaintiff argues that he

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seeks to compel federal officials to report and investigate “a crime concerning the U.S. President”

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under 28 U.S.C. §§ 535, 591. Plaintiff thus argues that neither 42 U.S.C. § 1983, nor 28 U.S.C. §

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1915 apply to this action and that his application to proceed in forma pauperis should be granted.

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As correctly stated in the magistrate judge’s January 27, 2016 findings and

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recommendations, 28 U.S.C. § 1915 applies to all civil actions brought by prisoners. Plaintiff

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attempts to avoid application of § 1915 by asserting that this is a “statutory action” and not a

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“civil action.” However, any action brought by a prisoner for violation of a statute is a “civil

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action” for purposes of § 1915.

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Having carefully considered this matter, the undersigned finds the court’s previous order
denying plaintiff’s application to proceed in forma pauperis to be supported by the record and
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proper analysis.
Accordingly, plaintiff’s motion for reconsideration of the order denying his application to

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proceed in forma pauperis, filed March 21, 2016 (Doc. No. 7), is DENIED.

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IT IS SO ORDERED.

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Dated:

March 31, 2016
UNITED STATES DISTRICT JUDGE

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