Johnson v. Kernan

Filing 18

ORDER Denying Plaintiff's 17 Motion for Reconsideration, signed by Chief Judge Lawrence J. O'Neill on 1/7/19. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DERRICK L. JOHNSON,
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Plaintiff,
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v.

Case No. 1:18-cv-00887-LJO-EPG (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION
(ECF NO. 17)

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SCOTT KERNAN,
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Defendant.
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Derrick Johnson (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights

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action filed pursuant to 42 U.S.C. § 1983. This case was dismissed on November 26, 2018, after

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Plaintiff’s request to proceed in forma pauperis was denied and Plaintiff failed to pay the filing

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fee. (ECF Nos. 14 & 15). On January 3, 2019, Plaintiff filed a motion for reconsideration. (ECF

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No. 15). It appears that Plaintiff is asking the Court to reconsider its order denying Plaintiff’s

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request to proceed in forma pauperis (ECF No. 14).

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Federal Rule of Civil Procedure 60(b) governs grounds for relief from an order:
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
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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 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).

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As to Rule 60(b)(6), Plaintiff “must demonstrate both injury and circumstances beyond his

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control that prevented him from proceeding with the action in a proper fashion.” Harvest v.

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Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted).

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Additionally, Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent manifest

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injustice and is to be utilized only where extraordinary circumstances prevented a party from

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taking timely action to prevent or correct an erroneous judgment.” (Id.) (internal quotations

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marks and citation omitted).

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Plaintiff’s motion will be denied. Plaintiff has failed to set forth facts or law that shows

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that he meets any of the above-mentioned reasons for granting relief from the order. Instead,

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Plaintiff simply reiterates that he is unable to pay the filing fee for this action.

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Accordingly, IT IS ORDERED that Plaintiff’s motion for reconsideration (ECF No. 17) is
DENIED.
IT IS SO ORDERED.

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Dated:

/s/ Lawrence J. O’Neill _____

January 7, 2019

UNITED STATES CHIEF DISTRICT JUDGE

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