Hollis v. Bal et al

Filing 11

ORDER signed by Magistrate Judge Edmund F. Brennan on 8/4/14 ORDERING that the courts May 20, 2014 order (ECF No. 6 ) is confirmed, and the Clerk of the Court shall terminate plaintiffs motions for reconsideration (ECF Nos. 8 , 9 , 10 ).(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARVIN GLENN HOLLIS,

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No. 2:13-cv-2145-EFB P

Plaintiff,
v.

ORDER

J. BAL, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. On May 20, 2014, the court determined that plaintiff was barred from proceeding

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in forma pauperis pursuant to 28 U.S.C. § 1915(g) and dismissed the action without prejudice to

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re-filing upon prepayment of the $400 filing fee. ECF No. 6. Plaintiff seeks reconsideration of

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that order, citing to Federal Rules of Civil Procedure 59(e) and 60(b). ECF Nos. 8, 9, 10.

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Under Rule 59(e), three grounds may justify reconsideration: (1) an intervening change in

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controlling law; (2) the availability of new evidence; or (3) the need to correct clear error or

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prevent manifest injustice. See Kern-Tulare Water Dist. v. City of Bakersfield, 634 F. Supp. 656,

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665 (E.D. Cal. 1986), rev’d in part on other grounds, 828 F.2d 514 (9th Cir. 1987), cert. denied,

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486 U.S. 1015 (1988); see also 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir.

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1999); accord School Dist. No. 1J v. AC&S, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Courts

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construing Federal Rule of Civil Procedure 59(e) have noted that a motion to reconsider is not a
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vehicle permitting the unsuccessful party to “rehash” arguments previously presented, or to

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present “contentions which might have been raised prior to the challenged judgment.” Costello v.

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United States, 765 F. Supp. 1003, 1009 (C.D. Cal. 1991); see also F.D.I.C. v. Meyer, 781 F.2d

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1260, 1268 (7th Cir. 1986); Keyes v. National R.R. Passenger Corp., 766 F. Supp. 277, 280 (E.D.

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Pa. 1991). These holdings “reflect[] district courts’ concerns for preserving dwindling resources

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and promoting judicial efficiency.” Costello, 765 F. Supp. at 1009.

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Rule 60(b) of the Federal Rules of Civil Procedure provides:

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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 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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“A 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).
In addition, Local Rule 230(j) requires that a motion for reconsideration state “what new

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

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upon such prior motion, or what other grounds exist for the motion,” and “why the facts or

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circumstances were not shown at the time of the prior motion.” E.D. Cal., Local Rule 230(j)(3)-

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(4).

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Plaintiff claims that the court erred in counting Hollis v. Villanueus, 09-15523 (9th Cir.

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Aug 26, 2009) as a strike because the appeal was actually dismissed for failure to prosecute, and

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not for failure to state a claim. ECF No. 9. In the Villanueus case, however, the district court

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expressly found that plaintiff’s appeal was frivolous. The appellate court then denied plaintiff’s

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application for leave to proceed in forma pauperis, and subsequently dismissed the appeal for

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failure to prosecute after plaintiff failed to pay the filing fee or show cause why the judgment
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challenged on appeal should not summarily affirmed. See Hollis v. Villanueus, 09-15523 (9th

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Cir.) (orders dated July 30, 2009 and August 26, 2009). The order of dismissal, though styled as

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one for failure to prosecute, qualifies as a strike. See O’Neal v. Price, 531 F.3d 1146, 1153 (9th

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Cir. 2008) (complaint is “dismissed” for purposes of § 1915(g) even if court styles such dismissal

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as denial of the prisoner’s application to file the action without prepayment of the full filing fee);

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see also, e.g., Lamon v. Junious, No. 1:09-cv-00484-AWI-SAB, 2014 U.S. Dist. LEXIS 9778, at

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*9-10 (E.D. Cal. Jan. 27, 2014) (dismissal of appeal for failure to prosecute counted as “strike”

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where underlying ground for dismissal was that appeal was frivolous); Thomas v. Beutler, No.

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2:10-cv-01300 MCE CKD P, 2012 U.S. Dist. LEXIS 159943, at *5-6 (E.D. Cal. Nov. 6, 2012)

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(same, and citing similar cases); Braley v. Wasco State Prison, No. 1:07-cv-01423-AWI-BAM,

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2012 U.S. Dist. LEXIS 133285 (E.D. Cal. Sept. 14, 2012) (“Plaintiff became subject to section

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1915(g) . . . when the appeal of the dismissal of his third action as frivolous was dismissed for

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failure to prosecute”); see also Hollis v. Downing, No. 2:09-cv-3431-MCE-KJN, 2010 U.S. Dist.

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LEXIS 130441 (E.D. Cal. Dec. 8, 2010), adopted by 2011 U.S. Dist. LEXIS 14078 (E.D. Cal.

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Feb. 10, 2011) (designating plaintiff a three-strike litigant, counting Hollis v. Villanueus, 09-

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15523 (9th Cir. Aug 26, 2009) as a strike, and relying on Ruff v. Ramirez, 2007 WL 4208286 *5

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(S.D. Cal. 2007) (dismissal for failure to prosecute by itself is not within ambit of Section

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1915(g); however, such dismissal qualifies as a strike when it is based upon plaintiff’s failure to

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file amended complaint after court dismissed original complaint as frivolous and afforded

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plaintiff leave to amend)).

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Plaintiff also disputes the finding that he does not meet the “imminent danger” exception

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to section 1915(g). He argues that he qualifies for the exception because, at the time he filed the

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complaint, he was being denied orthotic shoes, which caused him to experience “serious pain.”

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ECF No. 8. Assuming plaintiff had included that allegation in the complaint, which he did not, it

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fails to satisfy the imminent danger exception. Apart from the question of whether he currently

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has such shoes, plaintiff alleged in the complaint that he had pain in his feet when standing for

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“extended periods” and that provision of orthotic boots improves his quality of life and reduces

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the pain. ECF No. 1, ¶¶ 11-12. However, plaintiff did not allege that he is ever made to stand for
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extended periods of time. While plaintiff may be more comfortable in his orthotic shoes, he has

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not plausibly shown that without them, he is under imminent danger of serious physical injury.

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Accordingly, IT IS HEREBY ORDERED that the court’s May 20, 2014 order (ECF No.

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6) is confirmed, and the Clerk of the Court shall terminate plaintiff’s motions for reconsideration

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(ECF Nos. 8, 9, 10).

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DATED: August 4, 2014.

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