Wilson v. Lassiter et al

Filing 11

ORDER signed by Senior Judge William B. Shubb on 3/6/15 ORDERING that Plaintiff's MOTION for Relief 10 is DENIED; Plaintiff is GRANTED thirty days from the date of this order to pay the filing fee; failure to pay the filing fee will result in dismissal of this action. (Mena-Sanchez, L)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID W. WILSON, 12 13 14 15 No. 2:14-cv-1747 WBS KJN P Plaintiff, v. ORDER K.L. LASSITER, et al., Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. On September 23, 2014, the undersigned denied plaintiff’s application to 19 proceed in forma pauperis and ordered plaintiff to pay the filing fee within thirty days. (ECF No. 20 7.) On October 15, 2014, plaintiff filed objections to the September 23, 2014 order. (ECF No. 8.) 21 The undersigned construed plaintiff’s objections as a request for reconsideration. On February 2, 22 2015, the undersigned denied plaintiff’s request for reconsideration. (ECF No. 9.) 23 Pending before the court is plaintiff’s February 19, 2015 “motion for relief” from the 24 February 2, 2015 order. (ECF No. 10.) Plaintiff alleges that his motion is brought pursuant to 25 Federal Rule of Civil Procedure 60(b). Plaintiff again argues that the court erred in denying his 26 application to proceed in forma pauperis. 27 28 The standards for motions brought pursuant to Rule 60(b) and requests for reconsideration are similar. Rule 60(b) allows the Court to relieve a party from an order for “(1) mistake, 1 1 inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable 2 diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) 3 fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an 4 opposing party; (4) the judgment is void; or (6) any other reason that justifies relief.” 5 Fed.R.Civ.P. 60(b). 6 Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent manifest injustice 7 and is to be utilized only where extraordinary circumstances ...” exist. Harvest v. Castro, 531 8 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted). The moving party 9 “must demonstrate both injury and circumstances beyond his control .... “ Id. (internal quotation 10 11 marks and citation omitted). As stated in the February 2, 2015 order, three grounds may justify reconsideration: 1) an 12 intervening change in controlling law; 2) the availability of new evidence; or 3) the need to 13 correct clear error or prevent manifest injustice. Kern-Tulare Water Dist. v. City of Bakersfield, 14 634 F.Supp. 656, 665 (E.D. Cal. 1986), rev’d in part on other grounds, 828 F.2d 514 (9th Cir. 15 1987), cert. denied, 486 U.S. 1015 (1988). 16 The gravamen of plaintiff’s pending motion is his challenge to the finding that he did not 17 meet the imminent danger exception to 28 U.S.C. § 1915(g). Plaintiff has not demonstrated that 18 the September 23, 2014 order finding that he did not meet the imminent danger exception was in 19 error. Accordingly, plaintiff’s motion is denied. The court will entertain no further challenges to 20 the September 23, 2014 order denying plaintiff’s application to proceed in forma pauperis. 21 Accordingly, IT IS HERBY ORDERED that: 22 1. Plaintiff’s motion for relief (ECF No. 10) is denied; 23 2. Plaintiff is granted thirty days from the date of this order to pay the filing fee; failure to 24 pay the filing fee will result in dismissal of this action. 25 Dated: March 6, 2015 26 27 28 Will1747.req(2) 2

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