Tierney vs. Alo; et al.

Filing 29

ORDER DENYING MOTION UNDER RULE 60(b) re 28 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 5/1/13. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Michael C. Tierney shall be served by first class mail at the address of record on May 2, 2013.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MICHAEL C. TIERNEY,

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Plaintiff,
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vs.
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ACO S. ALO, et al.,
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Defendants
_____________________________ )

CIV. NO. 12-00059 SOM/KSC
ORDER DENYING MOTION UNDER
RULE 60(b)

ORDER DENYING MOTION UNDER RULE 60(b)
The court dismissed this action on April 20, 2012,
because Plaintiff has accrued more than three strikes pursuant to
28 U.S.C. § 1915(g), and failed to allege imminent danger of
serious physical injury or concurrently pay the filing fee.
ECF No. 16.
23, 2013.

See

The Ninth Circuit Court of Appeals affirmed on April

ECF No. 27.

Plaintiff moves for relief under Federal

Rule of Civil Procedure 60(b), although it is unclear whether he
seeks reconsideration of this court’s or the Ninth Circuit’s
decision.

Plaintiff’s Rule 60(b) Motion is DENIED.
Rule 60(b) permits reconsideration based on: (1)

mistake, inadvertence, surprise, or excusable neglect; (2)
newly-discovered evidence which by due diligence could not have
been discovered in time to move for a new trial under Rule 59;
(3) fraud, misrepresentation, or misconduct by an adverse party;
(4) the judgment is void; (5) the judgment has been satisfied,
released, or discharged, or a prior judgment upon which it is
based has been reversed or otherwise vacated, or it is no longer

equitable that the judgment should have prospective application;
or (6) any other reason justifying relief from the operation of
the judgment.

See Fed. R. Civ. P. 60(b)(1)-(b)(6).

Motions

under Rule 60(b) “must be made within a reasonable time-and for
reasons (1),(2), and (3) no more than a year after the entry of
the judgment or order[.]”

Fed. R. Civ. P. 60(c).

Reconsideration is generally only appropriate in three
instances: (1) when there has been an intervening change of
controlling law; (2) new evidence has come to light; or (3) when
necessary to correct a clear error or prevent manifest injustice.
School District No. 1J v. ACandS, Inc., 5 F.3d 1255, 1262 (9th
Cir. 1993).
To the extent Plaintiff challenges this court’s April
20, 2012, decision, he is untimely.

Plaintiff signed the present

Motion on April 25, 2013, more than one year after judgment
entered.

Review under Rule 60(b)(1-3) is foreclosed, and a

challenge under Rule 60(b)’s other provisions cannot be
considered as “made within a reasonable time.”

See Rule 60(c).

Even if the Motion is timely, Plaintiff presents no
newly discovered evidence, intervening change in the controlling
law, or manifest error in the decision to deny in forma pauperis
status in this action and dismiss the case without prejudice to
Plaintiff’s filing a new action accompanied by the statutory
filing fee.

The judgment is not void, satisfied, released,

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discharged, reversed or otherwise vacated; judgment was affirmed.
Plaintiff provides no other reason justifying relief from the
judgment.
Finally, if Plaintiff intended to seek reconsideration
of the Ninth Circuit’s decision affirming this court, he must
timely move in the Ninth Circuit Court of Appeals.

Plaintiff’s

Motion Under Rule 60(b) is DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 1, 2013.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Tierney v. Alo, 1:12-cv-00059 SOM/KSC;G:\docs\prose attys\Recon\DMP\2013\Tierney 12-59
som (R60(b)).wpd

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