Youngblood v. Uribe et al

Filing 18

ORDER denying 16 Motion for relief from dismissal and judgment signed by District Judge Anthony W. Ishii on 9/6/2018. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JESSE L. YOUNGBLOOD,
Plaintiff,

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v.

Case No. 1:17-cv-01132-AWI-EPG (PC)
ORDER DENYING MOTION FOR RELIEF
FROM DISMISSAL AND JUDGMENT
(ECF No. 16)

D. URIBE, et al.,

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Defendants.
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Jesse L. Youngblood (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff filed an application to proceed in forma pauperis

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on August 23, 2017. (ECF No. 2). The matter was referred to United States Magistrate Judge

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Erica P. Grosjean pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On January 26, 2018, the Magistrate Judge issued findings and recommendations,

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finding that Plaintiff had incurred more than three strikes under 28 U.S.C. § 1915(g) and did not

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qualify for the imminent danger of serious physical injury exception, and recommending that the

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application to proceed in forma pauperis be denied. On April 13, 2018, the Court adopted the

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findings and recommendations, denied the application to proceed in forma pauperis, and directed

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Plaintiff to pay the $400.00 filing fee within thirty days from the date of service of the order.

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(ECF No. 12). The order advised Plaintiff that the failure to pay the required filing fee within the

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time provided would result in dismissal of this action. Id. The thirty-day period has expired, and

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Plaintiff has failed to pay the filing fee.
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On April 27, 2018, Plaintiff filed a motion seeking waiver of payment of the filing until

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he has sufficient funds in his prisoner trust account to be billed 20% of any amount exceeding

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ten dollars. (ECF No. 13). Plaintiff, in effect, was again requesting to proceed in forma pauperis.

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See 28 U.S.C. § 1915(b)(1)(“[I]f a prisoner brings a civil action or files an appeal in forma

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pauperis, the prisoner shall be required to pay the full amount of a filing fee. The court shall

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assess and, when funds exist, collect, as a partial payment of any court fees required by law, an

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initial partial filing fee of 20 percent of the greater of—(A) the average monthly deposits to the

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prisoner’s account; or (B) the average monthly balance in the prisoner’s account for the 6-month

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period immediately preceding the filing of the complaint or notice of appeal.”). The Court,

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finding that Plaintiff had again failed to establish that he faces any imminent danger of serious

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physical injury, denied the renewed request for in forma pauperis status and dismissed this action,

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without prejudice, for Plaintiff’s failure to comply with the Court’s order of April 13, 2018, (ECF

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No. 12), and his failure to pay the filing fee. (ECF No. 14). The Clerk of Court entered judgment

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in accordance with the Court’s order on June 11, 2018. (ECF No. 15).

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On June 20, 2018, Plaintiff filed a motion for reconsideration, seeking relief from the

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dismissal and judgment. (ECF No. 16). Plaintiff states that this action is “[n]ot frivolous,

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malicious, or fails to state a claim,” and that he is “eligible for fee waiver as to proceed by 28

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U.S.C. § 1915 and 28 U.S.C. § 1915(g) for all court costs and court fees.” Id. at 2. Plaintiff further

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explains that he has a claim to which the State of California’s two-year statute of limitations for

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personal injury actions would apply, and he had to file the instant action before expiration of two

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years.

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Federal Rule of Civil Procedure 60 governs grounds for relief from an order and
judgment:
On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the
following reasons: (1) mistake, inadvertence, surprise, or
excusable neglect; (2) newly discovered evidence that, with
reasonable diligence, could not have been discovered in time to
move for a new trial under Rule 59(b); (3) fraud (whether
previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party; (4) the judgment is void; (5) the
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judgment has been satisfied, released, or discharged; it is based on
an earlier judgment that has been reversed or vacated; or applying
it prospectively is no longer equitable; or (6) any other reason that
justifies relief.

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Fed. R. Civ. P. 60(b). “A motion under Rule 60(b) must be made within a reasonable time--and

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for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the

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date of the proceeding.” Fed. R. Civ. P. 60(c)(1). “A motion for reconsideration should not be

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granted, absent highly unusual circumstances, unless the district court is presented with newly

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discovered evidence, committed clear error, or if there is an intervening change in the

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controlling law,” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873,
880 (9th Cir. 2009) (internal quotations marks and citations omitted), and “[a] party seeking
reconsideration must show more than a disagreement with the Court’s decision, and
recapitulation” of that which was already considered by the Court in rendering its decision,

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U.S. v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1131 (E.D. Cal. 2001) (internal quotation
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marks and citation omitted).
Plaintiff fails to establish any reason justifying relief from the Court’s order and
judgment. He merely states that this action is not frivolous and that he is required to comply
with the applicable statute of limitations. However, Plaintiff’s action may not proceed absent
the submission of the filing fee. See 28 U.S.C. § 1914. Plaintiff has not paid the filing fee, and
is ineligible to proceed in forma pauperis. See 28 U.S.C. § 1915(g)(“In no event shall a
prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in any facility, brought an action or appeal in a court
of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to
state a claim upon which relief may be granted, unless the prisoner is under imminent danger of
serious physical injury.); see also Youngblood v. Clark, No.:1:15-cv-01746 (E. D. Cal. Aug.
15, 2017) (dismissing action for failure to state a claim); Youngblood v. Warden, Case No.
4:13-cv-04366 (N. D. Cal. Nov. 12, 2013) (dismissing action for failure to state a claim);
Youngblood v. Evans, Case No. 4:13-cv-02097 (N. D. Cal. May 14, 2013) (dismissing action as

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frivolous and for failure to state a claim); Youngblood v. Warden, Case No. 4:12-cv-04423 (N.

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D. Cal. Feb. 4, 2013) (dismissing action as frivolous and for failure to state a claim);

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Youngblood v. State of California, 2:05-cv-0727-LKK-DAD (E. D. Cal. Sept. 11, 2006)

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(dismissing action for failure to state a claim); Youngblood v. State of California, 4:11-cv-

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4064-PJH (N. D. Cal. Mar. 16, 2012) (dismissing action for failure to state a claim);

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Youngblood v. Lamarque, 4:12-cv-4423-PJH (N. D. Cal. Feb. 4, 2013) (dismissing action for

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failure to state a claim and for frivolousness); Youngblood v. Feather Falls Casino, 4:13-cv-

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128-PJH (N. D. Cal. Feb. 28, 2013.) (dismissing action for failure to state a claim and for

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frivolousness). Accordingly, Plaintiff’s motion for reconsideration, filed on June 20, 2018,

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(ECF No. 16), is HEREBY DENIED.

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IT IS SO ORDERED.
Dated: September 6, 2018
SENIOR DISTRICT JUDGE

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