Senator v. Cates et al

Filing 10

ORDER signed by Magistrate Judge Dale A. Drozd on 3/11/2013 ORDERING that, upon reconsideration of plaintiff's 8 request for reconsideration, the 6/5/2012 order is AFFIRMED; within 21 days, plaintiff shall pay the $350.00 statutory filing fee of $350.00; and plaintiff's failure to pay the filing fee as ordered will result in the dismissal of this action without prejudice. (Yin, 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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BRUCE SENATOR,

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Plaintiff,

No. 2:11-cv-02029 DAD P

vs.
MATTHEW CATES, et al.,
Defendants.

ORDER
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Plaintiff, a former state prisoner, has filed a civil rights complaint and seeks leave

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to proceed in forma pauperis. He has consented to Magistrate Judge jurisdiction in this action

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pursuant to 28 U.S.C. § 636(c). (See Doc. No. 4.) On June 21, 2012, plaintiff filed a request for

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reconsideration of the undersigned’s June 5, 2012 order denying plaintiff’s application to proceed

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in forma pauperis pursuant to 28 U.S.C. § 1915(g) and ordering him to pay the filing fee. In that

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June 5, 2012 order the undersigned determined that plaintiff had, on three or more prior

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occasions, brought a civil action that was dismissed on the grounds that it was frivolous,

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malicious or failed to state a claim upon which relief could be granted. (Doc. No. 7 at 2-3.) The

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court also concluded that plaintiff had failed to establish that this action, in which plaintiff

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alleges that he has received constitutionally inadequate care, fell within any exception to §

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1915(g)’s three-strike bar in light of the fact that the allegations of his complaint and the records
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attached thereto failed to show that plaintiff was faced with an imminent danger of serious

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physical injury. (Doc. No. 7 at 3-4.)

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In his request for reconsideration, plaintiff argues that he continues to have

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problems with both “spinal ‘buckling’” and his right knee which causes him to fall when he is

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walking without his cane and when exercising. Plaintiff also argues that the court reached

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erroneous conclusions about his medical condition and mental health.

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A party seeking reconsideration of an order is required to show the “new or

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different facts or circumstances claimed to exist which did not exist or were not shown upon

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such prior motion, or what other grounds exist for the motion[.]” Local Rule 230(j)(3). “A

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motion for reconsideration should not be granted, absent highly unusual circumstances, unless

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the . . . 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.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH

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& Co., 571 F.3d 873, 880 (9th Cir. 2009). Accordingly, “[a] party seeking reconsideration must

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show more than a disagreement with the [c]ourt’s decision, and recapitulation of the cases and

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arguments considered by the court before rendering its original decision fails to carry the moving

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party’s burden.” United States v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1131 (E.D. Cal.

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2001) (quoting Bermingham v. Sony Corp. of Am., Inc., 820 F. Supp. 834, 856-57 (D. N.J.

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1992)).

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In his motion for reconsideration of the court’s June 5, 2012 order, plaintiff has

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not presented any new facts or evidence indicating that his medical condition has worsened to the

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extent that he now faces an imminent danger of serious physical injury. Rather, in the motion for

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reconsideration plaintiff merely repeats his description of his ongoing, chronic knee and spine

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conditions. Plaintiff’s mere disagreement with the conclusions set forth in the court’s prior order

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do not provide sufficient grounds to support his motion for reconsideration of that order.

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Therefore, IT IS HEREBY ORDERED that:

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1. Upon reconsideration of plaintiff’s June 21, 2012 request for reconsideration

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(Doc. No. 8), the undersigned’s order filed on June 5, 2012, is affirmed;

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2. Within twenty-one days from the service of this order, plaintiff shall pay the
statutory filing fee of $350.00; and

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3. Plaintiff’s failure to pay the filing fee as ordered will result in the dismissal of

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this action without prejudice.

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DATED: March 11, 2013.

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DAD:4
sen2029.recon

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