Ellis v. Thompson et al

Filing 10

ORDER signed by Magistrate Judge Edmund F. Brennan on 2/6/2017 ORDERING plaintiff's 9 motion for reconsideration, construed as a Rule 60(b) motion, is DENIED. (Yin, K)

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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 ROBERT J. ELLIS, 12 Plaintiff, 13 14 No. 2:16-cv-1120-EFB P v. ORDER THOMPSON, et al., 15 Defendants. 16 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 17 18 U.S.C. § 1983.1 On June 16, 2016, the court denied plaintiff’s application to proceed in forma 19 pauperis because he is a three-strikes litigant within the meaning of 28 U.S.C. § 1915(g). ECF 20 No. 5. Plaintiff is therefore barred from proceeding in forma pauperis and he subsequently failed 21 to pay the filing fee. Accordingly, the court dismissed the case and judgment was duly entered. 22 ECF Nos. 7 & 8. Plaintiff now moves for reconsideration. The court construes that motion as 23 one for relief from judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. 24 ///// 25 ///// 26 ///// 27 28 1 This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to plaintiff’s consent. See E.D. Cal. Local Rules, Appx. A, at (k)(4). 1 1 Rule 60(b) provides: 2 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. 3 4 5 6 7 8 9 10 11 Fed. R. Civ. P. 60(b). Plaintiff’s motion does not address the Rule 60(b) standards or otherwise demonstrate that he is entitled to relief from judgment under Rule 60(b). Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for reconsideration, 12 construed as a Rule 60(b) motion (ECF No. 9) is denied. 13 DATED: February 6, 2017. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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