Grandinetti v. Champion Air

Filing 9

ORDER DENYING MOTION FOR RECONSIDERATION re 8 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 1/2/13. (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). Francis Grandinetti served by first class mail at the address of record on January 3, 2013.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
F. GRANDINETTI, #A0185087,

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Plaintiff,
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vs.
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CHAMPION AIR, et al.,
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Defendants.
_____________________________ )

NO. 1:12-cv-00528 SOM/RLP
ORDER DENYING MOTION FOR
RECONSIDERATION

ORDER DENYING MOTION FOR RECONSIDERATION
The court dismissed Plaintiff’s Complaint and action on
September 27, 2012, finding that Plaintiff had accrued three
strikes under 28 U.S.C. § 1915(g), did not show imminent danger
of serious injury, and could not proceed without prepayment of
the filing fee.

ECF #4.

Plaintiff has now filed a document

stating that he never received a copy of that Order or entry of
judgment, and seeks reconsideration of the dismissal of this
action pursuant to Rule 59 of the Federal Rules of Civil
Procedure.
Court records disclose that the Order Dismissing
Complaint and Action, filed on September 27, 2012, was returned
by the prison, with a notation stating, “Refused by Inmate.”
#6.

ECF

If Plaintiff is taken at his word, and he has never received

notice that his action was dismissed, there is no reason for him
to be seeking reconsideration.

At most, an alleged failure to

receive the Order explains Plaintiff’s failure to meet the
deadline for filing a Rule 59 motion for reconsideration.

See

Fed. R. Civ. P. 59(e) (stating, “[a] motion to alter or amend a
judgment must be filed no later than 28 days after the entry of
the judgment.”).

Cognizant that it lacks authority to extend

that deadline and that Plaintiff is proceeding pro se, this court
construes the present motion as brought under Rule 60 of the
Federal Rules of Civil Procedure.
Whether he did or did not receive notice of the
dismissal of this action, Plaintiff provides no coherent reason
for the court to reconsider its decision that he may not proceed
in forma pauperis and that his Complaint and action should be
dismissed without prejudice.

He sets forth no intervening change

in controlling law, new evidence, or need to correct clear error
or prevent manifest injustice.

See White v. Sabatino, 424 F.

Supp. 2d 1271, 1274 (D. Haw. 2006) (citing Mustafa v. Clark
County Sch. Dist., 157 F.3d 1169, 1178-79 (9th Cir. 1998)).
Plaintiff’s Motion is DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 2, 2013.

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

Grandinetti v. Champion Air, et al., 1:12-cv-00528 SOM/RLP; ORDER DENYING MOTION FOR
RECONSIDERATION; G:\docs\prose attys\Recon\DMP\2013\Grandinetti 12-528 som .wpd)

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