Hollis v. McGuire, et al

Filing 51

ORDER signed by Judge Kimberly J. Mueller on 3/12/2012 ORDERING that plaintiff's 50 motion for reconsideration is GRANTED. The clerk of the court is directed to REOPEN this case. (Zignago, K.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARVIN GLENN HOLLIS,
Plaintiff,

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No. CIV S-09-1065 KJM-KJN P

vs.
J. MCGUIRE; et al.,

ORDER

Defendants.
/
On December 15, 2011, plaintiff filed a motion for reconsideration in accordance

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with Federal Rule of Civil Procedure 60. (ECF 50.) Plaintiff asks the court to reconsider its

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orders revoking his in forma pauperis (“IFP”) status and dismissing the case. (Id.) Specifically,

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relying on Silva v. DiVittorio, 658 F.3d 1090 (9th Cir. 2011), he contends that there has been a

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subsequent change in the law affecting calculation of strikes for purposes of determining

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whether to grant IFP status. (Id.) Rule 60(b) provides: “On motion and just terms, the court may

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relieve a party . . . from a final judgment . . . for . . . (1) mistake, inadvertence, surprise, or

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excusable neglect; (2) newly discovered evidence . . .; (3) fraud . . . misrepresentation, or

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misconduct . . .; (4) the judgment is void; (5) the judgment has been satisfied, released or

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discharged . . .; or (6) any other reason that justified relief.” A Rule 60(b) motion “must be made

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within a reasonable time.” FED. R. CIV. P. 60(c)(1).
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28 U.S.C. § 1915(g) provides:

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In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding 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.

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In Silva, the Ninth Circuit found “a dismissal must be final before it counts as a ‘strike’ for

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§ 1915(g) purposes.” 658 F.3d at 1098-99. Thus, “a district court’s dismissal of a case does not

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count as a ‘strike’ under § 1915(g) until the litigant has exhausted or waived his opportunity to

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appeal. This means a dismissal ripens into a ‘strike’ for § 1915(g) purposes on the date of the

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Supreme Court’s denial or dismissal of a petition for writ of certiorari, if the prisoner filed one,

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or from the date when the time to file a petition for writ of certiorari expired, if he did not.” Id.

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at 1100 (internal quotation omitted). “If a prisoner does not appeal a dismissal, the dismissal

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counts as a ‘strike’ from the date when his time to file a direct appeal expired.” Id. at n.6.

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Plaintiff filed his complaint on April 20, 2009. (ECF 1.) On October 9, 2009, the

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undersigned, as the assigned magistrate judge at the time, granted plaintiff’s request to proceed

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IFP. (ECF 12.) On February 18, 2011, the currently assigned magistrate judge revoked

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plaintiff’s IFP status. (ECF 44.) He found that plaintiff had struck out by relying on Hollis v.

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Evans, 08-15037 (9th Cir.), dismissed December 18, 2008; Hollis v. Villanueus, 09-15523

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(9th Cir.), dismissed August 26, 2009; Hollis v. Mazon-Alec, 1:03-cv-6842 (E.D. Cal.),

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dismissed January 27, 2005; and Hollis v. Villanueus, 3:07-cv-04538 (N.D. Cal.), dismissed

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February 2, 2009. However, in accordance with Silva, only two of these dismissals – Evans and

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Mazon-Alec – ripened into a strike for purposes of the above-captioned matter. Furthermore, the

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two Villanueus cases should not be considered separately as one is the appeal of the other. See

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Silva, 658 F.3d at 1101; see also Hollis v. Gorby, 2:09-cv-01627-JAM-CKD, Oct. 4, 2011 Order,

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ECF 73. Villanueus became a strike “once the time for filing a certiorari petition expired–ninety

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days after” the Ninth Circuit dismissed, after this case was filed.

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Accordingly, plaintiff’s motion for reconsideration is GRANTED. The clerk of
the court is directed to REOPEN this case.
IT IS SO ORDERED.
DATED: March 12, 2012.

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UNITED STATES DISTRICT JUDGE

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