Fisher v. Roukley

Filing 8

ORDER signed by Magistrate Judge Dale A. Drozd on 1/7/2015 ORDERING that upon reconsideration, the order filed 12/3/2014 is AFFIRMED; plaintiff shall, within 21 days, submit the appropriate filing fee of $400.00; plaintiff's failure to timely comply with this order will result in the dismissal of this action. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GARY FISHER, aka GARY FRANCIS
FISHER, aka GARY DALE BARGER
(CDCR No. F-85263),

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Plaintiff,

No. 2:14-cv-2417 DAD P

ORDER

v.
R. J. ROUKLEY, et al.,
Defendants.

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Plaintiff Gary Fisher, also known as Gary Francis Fisher and Gary Dale Barger, is a state

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prisoner proceeding without counsel with a civil rights complaint filed pursuant to 42 U.S.C. §

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1983. Plaintiff has consented to magistrate judge jurisdiction for all purposes pursuant to 28

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U.S.C. § 636(c), and Local Rule 305(a). (See ECF No. 5.)

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On December 3, 2014, the undersigned filed an order denying plaintiff’s motion to

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proceed in forma pauperis, on the basis that he has been designated a “three strikes litigant” under

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28 U.S.C. § 1915(g). (ECF No. 6.) On December 9, 2014, plaintiff filed a request for

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reconsideration of that order. (ECF No. 7.)

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

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or circumstances claimed to exist which did not exist or were not shown upon such prior motion,

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or what other grounds exist for the motion[.]” Local Rule 230(j)(3). “A motion for
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reconsideration should not be granted, absent highly unusual circumstances, unless the . . . court

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is presented with newly discovered evidence, committed clear error, or if there is an intervening

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change in the controlling law.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571

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F.3d 873, 880 (9th Cir. 2009). Accordingly, “A party seeking reconsideration must show more

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

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considered by the court before rendering its original decision fails to carry the moving party’s

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burden.” United States v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1131 (E.D. Cal. 2001)

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(quoting Bermingham v. Sony Corp. of Am., Inc., 820 F. Supp. 834, 856-57 (D. N.J. 1992)).

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In his motion for reconsideration of the court’s December 3, 2014 order, plaintiff has not

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presented any new facts or evidence that would suggest that he now faces an imminent danger of

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serious physical injury. While plaintiff repeats his claim that his lawsuit is based primarily upon

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an “attempted murder” (ECF No. 7 at 2), he again fails to set forth any factual allegations

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substantiating that claim. In his motion for reconsideration plaintiff also disputes his designation

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as a “three strikes” litigant, but does not provide any sufficient basis for the court to change its

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determination in this regard. Plaintiff’s citation to disparate orders issued by federal district and

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circuit courts from around the country is similarly unpersuasive.

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Ultimately, plaintiff’s mere disagreement with the conclusions set forth in the court’s prior
order does not provide sufficient grounds to support his motion for reconsideration of that order.

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In light of the foregoing, IT IS HEREBY ORDERED that:

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1. Upon reconsideration, the order filed December 3, 2014 is affirmed.

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2. Plaintiff shall, within twenty-one days from the date of this order, submit the

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appropriate fee of $400.00 ($350.00 filing fee plus $50.00 administrative fee).
3. Plaintiff’s failure to timely comply with this order will result in the dismissal of this

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action.
Dated: January 7, 2015

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DAD:10/md
fish2417.850

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