(PC)Simmons v. Wuerth et al
Filing
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ORDER ADOPTING 14 Findings and Recommendations and Denying Plaintiff's Motion for Reconsideration signed by District Judge Dale A. Drozd on 04/02/2020. Twenty-One Day Deadline. (Flores, E)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MELVIN JOSEPH SIMMONS,
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No. 1:19-cv-01107-DAD-SAB (PC)
Plaintiff,
v.
J. WUERTH, et al.,
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DENYING
PLAINTIFF’S MOTION FOR
RECONSIDERATION
Defendant.
(Doc. Nos. 14, 17)
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Plaintiff Melvin Joseph Simmons is a state prisoner proceeding pro se in this civil rights
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action pursuant to 42 U.S.C. § 1983. This action was referred to a United States Magistrate Judge
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pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
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On August 28, 2019, the court received a letter from plaintiff, addressed to the Clerk of
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the Court, demanding that the court cease and desist using “Jr.” as part of his name. (Doc. No.
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10.) Additionally, on September 3, 2019, plaintiff filed an application to proceed in forma
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pauperis. (Doc. No. 11.) The assigned magistrate judge granted plaintiff’s application to proceed
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in forma pauperis on September 5, 2019. (Doc. No. 12.)
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On September 6, 2019, the magistrate judge denied plaintiff’s motion to cease and desist
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as moot (Doc. No. 13), and issued an order vacating the September 5, 2019 order granting
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plaintiff’s application to proceed in forma pauperis because the order was inadvertently issued.
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(Doc. No. 14.) The magistrate judge also issued findings and recommendations recommending
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that plaintiff’s in forma pauperis application be denied and that he be required to pay the $400.00
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filing fee in order to proceed with this action. (Id.) The findings and recommendations were
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served on plaintiff and contained notice that any objections thereto were to be filed within thirty
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(30) days after service of the findings and recommendations. (Id.) On September 30, 2019,
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plaintiff filed written objections to the findings and recommendations, (Doc. No. 16), and
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objections to the magistrate judge’s order denying as moot plaintiff’s motion to cease and desist,
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which the court now construes as a motion for reconsideration. (Doc. No. 17.)
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With respect to the magistrate judge’s findings and recommendations, the court has
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conducted a de novo review of this case in accordance with the provisions of 28 U.S.C.
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§ 636(b)(1)(C). Having carefully reviewed the entire file, including plaintiff’s objections, the
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court finds that the findings and recommendations are supported by the record and by proper
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analysis.
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Plaintiff objects on the ground that he meets the imminent danger exception to the three
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strikes rule under 28 U.S.C. § 1915(g). (See Doc. No. 16.) The findings and recommendations
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noted that at the time that plaintiff filed his complaint and currently, he is housed at High Desert
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State Prison, and there are no allegations in his complaint or elsewhere that he is in imminent
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danger of physical harm based on his claim that he was subjected to the excessive use of force
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over a year ago at a different prison. (Doc. No. 14 at 5.) Plaintiff now argues that a correctional
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counselor caused him serious bodily harm on April 25, 2019, and that he was assaulted by two
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active gang member prison inmates and correctional staff at High Desert State Prison on May 8,
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2019. (Doc. No. 16 at 3.) Plaintiff avers that an official report was falsified, charging plaintiff
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with assault with a deadly weapon. (Id. at 3–4.) He further contends that he was “sold by” the
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Los Angeles County Sherriff’s Department and Los Angeles County Superior Court as part of a
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conspiracy to cheat and defraud him of his fundamental rights. (Id.) However, the undersigned
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notes that none of these difficult to decipher allegations are contained in plaintiff’s complaint.
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(See generally Doc. No. 1.) Section 1915(g)’s imminent danger “exception applies if the
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complaint makes a plausible allegation that the prisoner faced ‘imminent danger of serious
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physical injury’ at the time of filing.” Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007)
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(emphasis added); see also id. at 1053 (The availability of the imminent danger exception “turns
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on the conditions a prisoner faced at the time the complaint was filed, not at some earlier or later
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time.”). Because plaintiff’s complaint does not allege that he was in imminent danger at the time
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his complaint was filed, plaintiff does not satisfy the exception.
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The court next turns to plaintiff’s motion for reconsideration. “A motion for
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reconsideration should not be granted, absent highly unusual circumstances, unless the district
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court is presented with newly discovered evidence, committed clear error, or if there is an
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intervening change in the controlling law,” and it “may not be used to raise arguments or present
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evidence for the first time when they could reasonably have been raised earlier in the litigation.”
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Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009)
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(internal quotations marks and citations omitted) (emphasis in original). Further, Local Rule
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230(j) requires, in relevant part, that a movant show “what new or different facts or circumstances
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are claimed to exist which did not exist or were not shown” previously, “what other grounds exist
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for the motion,” and “why the facts or circumstances were not shown” at the time the substance
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of the order which is objected to was considered.
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Here, plaintiff’s motion for reconsideration fails to present any new or different facts or
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circumstances. Therein, plaintiff merely advances several difficult to decipher recitations of law
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without explaining their pertinence to his case. (See generally Doc. No. 17.) The undersigned
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also reiterates the magistrate judge’s finding that the relief sought by plaintiff through his motion
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to “cease and desist” has already been achieved because this court has stopped using “Jr.” in
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plaintiff’s name on the docket in this case and in the caption of any court orders. (Compare Doc.
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No. 4 at 1 (“I, Melvin Joseph Simmons . . . demand that you remove the Jr suffix misdescribing
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my legal personality Melvin Joseph Simmons immediately, struck off these proceedings
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completely. And that this active docket is recorded as filed by the moving papers of Plaintiff
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Melvin Joseph Simmons.”) with Doc. No. 13 (“The Court’s docket now reflects that Plaintiff’s
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name is ‘Melvin Joseph Simmons’ and the case has been titled Melvin Joseph Simmons v. J.
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Wuerth, et al.”))
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Accordingly:
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1.
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adopted in full;
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In accordance with 28 U.S.C. § 1915(g), plaintiff’s application to proceed in forma
pauperis (Doc. No. 11) is denied;
3.
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The findings and recommendations issued on September 6, 2019 (Doc. No. 14) are
Within twenty-one (21) days following service of this order, plaintiff shall pay the
$400.00 filing fee in full in order to proceed with this action;
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Plaintiff is forewarned that if he fails to pay the required filing fee within the time
specified by this order, this action will be dismissed;
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5.
Plaintiff’s motion for reconsideration (Doc. No. 17) is denied; and
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6.
This matter is referred back to the assigned magistrate judge for further
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proceedings.
IT IS SO ORDERED.
Dated:
April 2, 2020
UNITED STATES DISTRICT JUDGE
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