Trujillo v. Gonzalez-Moran et al

Filing 16

ORDER DENYING Plaintiff's Motion to Alter or Amend the Judgment Pursuant to Rule 59(e) 14 , signed by Magistrate Judge Barbara A. McAuliffe on 2/6/17. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GUILLERMO CRUZ TRUJILLO,

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Plaintiff,
v.
R. GONZALEZ-MORAN, et al.,

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Defendants.

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Case No.: 1:16-cv-01938-BAM
ORDER DENYING PLAINTIFF’S MOTION TO
ALTER OR AMEND THE JUDGMENT
PURSUANT TO RULE 59(e)
(ECF No. 14)

Plaintiff Guillermo Cruz Trujillo, a state prisoner proceeding pro se, filed this civil action on

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December 29, 2016. (ECF No. 1.) Plaintiff consented to magistrate judge jurisdiction. (ECF No. 5.)

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On January 19, 2017, the Court denied Plaintiff’s motion to proceed in forma pauperis, and

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dismissed the action without prejudice, pursuant to 28 U.S.C. § 1915(g). Judgment was entered

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accordingly and the action was closed. (ECF Nos. 8, 9.)

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On January 30, 2017, Plaintiff filed a notice of appeal of the final order and judgment. (ECF

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No. 12.) The appeal has been processed by the Ninth Circuit Court of Appeals. (ECF No. 13.)

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On February 1, 2017, Plaintiff filed the instant motion “for imminent danger of serious

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physical injury.” (ECF No. 14.) Plaintiff argues that because he faces imminent danger of serious

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physical injury, the Court erred in dismissing this action, that his motion to proceed in forma pauperis

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should be granted, and that this action should be allowed to proceed without prepayment of the filing

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fee. The Court construes Plaintiff’s motion as a motion to alter or amend the judgment pursuant to

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Federal Rule of Civil Procedure 59(e).
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I.

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Before addressing the substance of Plaintiff’s motion, the Court must consider whether it has

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jurisdiction to entertain a motion filed after Plaintiff filed his notice of appeal. Generally, the filing of

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a notice of appeal divests the district court of jurisdiction over the matters appealed. Townley v.

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Miller, 693 F.3d 1041, 1042 (citing Davis v. United States, 667 F.2d 822 (9th Cir. 1982)). However,

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under Federal Rule of Civil Procedure 62.1(a), a district court retains the authority to entertain the

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motion and deny it, defer consideration of it, state that it would grant the motion if the court of appeals

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remands for that purpose, or state that the motion raises a substantial issue. Fed. R. Civ. P. 62.1(a)(1)-

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(3); see also Simpson v. Evans, 525 Fed. Appx. 535, 536 (9th Cir. 2013) (pursuant to Rule 62.1(a)(2),

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district court retained jurisdiction to deny a timely-filed motion for leave to amend petition, even

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though motion was filed after notice of appeal).

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Jurisdiction

Consequently, the Court retains the jurisdiction and authority to deny Plaintiff's motion to alter
or amend the judgment, which it does for the reasons discussed below.

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II.

Motion for Reconsideration

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Plaintiff does not dispute that he is subject to the three-strikes provision of 28 U.S.C. §

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1915(g). Plaintiff argues, however, that he qualifies for the exception to this provision because he is

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under imminent danger of serious physical injury. As a result, he seeks relief from the judgment

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dismissing his action without prejudice to refiling with submission of the $400 filing fee.

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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).
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The Court finds no grounds to reconsider its final order and judgment dismissing this action

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pursuant to § 1915(g). Plaintiff is correct that there is an exception to the three-strikes provision in §

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1915(g) for prisoners “under imminent danger of serious physical injury.” However, as discussed in

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the Court’s January 19, 2017 order, “[p]risoners qualify for the exception based on the alleged

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conditions at the time the complaint was filed.” Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir.

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2007). “In other words, the availability of the exception turns on the conditions a prisoner faced at the

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time the complaint was filed, not at some earlier or later time.” Id. at 1053.

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Here, Plaintiff’s complaint was filed on December 29, 2016, when he was housed at Pelican

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Bay State Prison (where he is currently housed). (ECF No. 1.) However, his complaint concerned

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alleged retaliation threats by correctional staff from March 26, 2015 through September 17, 2015, and

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an assault on September 15, 2015, at Kern Valley State Prison. The Court found that these events

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occurring over a year prior to the date of the complaint’s filing, and at an institution where he was no

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longer housed, did not show that Plaintiff was under any imminent danger of serious physical harm at

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the time he filed his complaint.

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Plaintiff’s current motion alleges that he was assaulted at High Desert State Prison, on August

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11, 2016, by orders of correctional staff at that institution, more than four months prior to the filing of

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the complaint. These allegations concerning unrelated events from those in the complaint, at an

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institution where Plaintiff was no longer housed at the time of the complaint, do not show that he was

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under an imminent threat of serious physical injury at the time the complaint in this action was filed.

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These new allegations not contained in the original complaint, even if considered and construed in the

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light most favorable to Plaintiff, do not support reconsideration of this Court’s dismissal of this action.

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

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judgment, filed February 1, 2017 (ECF No. 14), is DENIED.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

February 6, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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