Parrish (ID 25121) v. Correct Care Solutions

Filing 8

MEMORANDUM AND ORDER ENTERED: Plaintiff's motion for reconsideration is liberally construed as a renewed motion for leave to proceed in forma pauperis and is denied. Certification of the interlocutory appeal and leave to proceed on appeal in forma pauperis are denied. No stay will issue in this matter during the pendency of the appeal. Signed by Senior District Judge Sam A. Crow on 10/17/2012. (Mailed to pro se party Daniel Joseph Parrish by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DANIEL JOSEPH PARRISH,
Plaintiff,
v.

CASE NO. 12-3208-SAC

CORRECT CARE SOLUTIONS,
Defendant.

MEMORANDUM AND ORDER
This matter comes before the court on plaintiff’s combined motion
for reconsideration and interlocutory notice of appeal (Doc. 4).
Plaintiff, a prisoner in state custody, brings this action pursuant
to 42 U.S.C. § 1983 against the health care services provider, claiming
that one dentist is insufficient staffing to serve the population
there.
The motion for reconsideration
Plaintiff is subject to 28 U.S.C. § 1915(g), the three-strikes
rule of the Prison Litigation Reform Act. Under that provision, a
prisoner cannot proceed in forma pauperis if he has filed at least
three actions or appeals in the federal courts that were dismissed
as frivolous, malicious, or for failure to state a claim upon which
relief may be granted, unless the prisoner “is under imminent danger
of serious physical injury.” § 1915(g).
By its order entered on October 2, 2012, the court found no basis
to exempt plaintiff from that status, denied leave to proceed in forma
pauperis, and directed plaintiff to submit the full filing fee on or
before November 2, 2012.

The Federal Rules of Civil Procedure do not recognize a “motion
for reconsideration.” Van Skiver v. United States, 952 F.2d 1241, 1243
(10th Cir. 1991), cert. denied, 506 U.S. 828 (1992). Thus, a court must
construe such a filing either as a motion to alter or amend the judgment
pursuant to Rule 59(e), if the motion is filed within ten days from
the entry of judgment, or, if it is filed more than ten days after
the entry of judgment, as a motion for relief from judgment pursuant
to Rule 60(b).
Here, because there is no final judgment, the court liberally
construes the plaintiff’s motion for reconsideration as a renewed
request for leave to proceed in forma pauperis. Having considered the
plaintiff’s motion, which alleges that certain papers submitted to
the Secretary of Corrections were not returned to the plaintiff, the
court finds no showing that he is in imminent physical danger.
Accordingly, the court must deny his motion.
The interlocutory appeal
Plaintiff

also

files

a

motion

for

interlocutory

appeal,

apparently from the order denying leave to proceed in forma pauperis.
This request must be evaluated under 28 U.S.C. § 1292(b), which
provides, in part:
When a district judge in making in a civil action an
order not otherwise appealable under this section,
shall be of the opinion that such order involves a
controlling question of law as to which there is
substantial ground for difference of opinion and that
an immediate appeal from the order may materially
advance the ultimate termination of the litigation,
he shall so state in writing in such order. The Court
of Appeals…may thereupon, in its discretion, permit
an appeal to be taken from such order….
The court finds no basis to certify the interlocutory appeal nor

any basis to grant leave to proceed on appeal in forma pauperis.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff’s motion for
reconsideration is liberally construed as a renewed motion for leave
to proceed in forma pauperis and is denied.
IT IS FURTHER ORDERED that certification of the interlocutory
appeal and leave to proceed on appeal in forma pauperis are denied.
No stay will issue in this matter during the pendency of the appeal.
Copies of this order shall be transmitted to the plaintiff and
to the U.S. Court of Appeals for the Tenth Circuit.
IT IS SO ORDERED.
DATED:

This 17th day of October, 2012 at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge