Perry v. Boston Scientific Family et al

Filing 17

ORDER denying plaintiff's 16 Request for Leave to File a Motion for Reconsideration (Written Opinion). Signed by Judge John R. Tunheim on February 12, 2014. (DML)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
DONALD PERRY,

Civil No. 13-733 (JRT/TNL)
Plaintiff,

v.
BOSTON SCIENTIFIC FAMILY;
BOSTON SCIENTIFIC
CORPORATION; MD KEN STEIN;
BOSTON SCIENTIFIC CARDIAC
RHYTHM MANAGEMENT, et al.; and
any future defendants,

ORDER DENYING PLAINTIFF’S
REQUEST FOR LEAVE TO FILE A
MOTION FOR RECONSIDERATION

Defendants.

Donald Perry, No. 050031, D-1113-L, Martin Correctional Institution, 1150
Southwest Allapattah Road, Indiantown, FL 34956, pro se.

On March 29, 2013, Plaintiff Donald Perry filed a complaint alleging that
Defendants manufactured a defective pacemaker that is causing Perry serious health
problems. (Compl. Mar. 29, 2013, Docket No. 1.) On December 5, 2013, the Court
affirmed the order of United States Magistrate Judge Tony N. Leung denying, among
other requests, Perry’s application for leave to proceed in forma pauperis (“IFP”). (Mem.
Op. & Order, Dec. 5, 2013, Docket No. 15.) The Court affirmed the Magistrate Judge on
the basis that Perry was subject to the “three strikes rule” because he is “‘an inmate who
has had three prior actions or appeals dismissed as frivolous, malicious, or for failure to
state a claim.’” (Id. at 4 (quoting Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir.
2003)).) The Court found that Perry’s complaint did not satisfy the imminent danger

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exception to the three strikes rule because his cause of action against Defendants did not
have the potential to prevent any imminent danger to Perry caused by the allegedly
defective pacemaker. (Id. at 4-6.) Specifically, the Court found that although “Perry may
face an imminent danger of serious injury due to the continued presence in his body of
his pacemaker . . . the present action against Boston Scientific is not a vehicle that could
possibly protect him from that danger,” because Perry would not, as a matter of law, be
entitled to “injunctive relief in the form of [Defendants] removing Perry’s pacemaker and
providing medical care.” (Id. at 5.)
Perry now seeks leave to file a motion for reconsideration, arguing that the Court
should reconsider its December 5 denial of his application to proceed IFP because on
August 7, 2013, a United States Magistrate Judge in the Southern District of Florida
granted Perry’s application to proceed without paying the filing fee in a lawsuit Perry
filed against Florida prison officials alleging various assaults and misconduct by those
officials against Perry during his incarceration. (S.D. Fla. Civ. No. 13-14295, Order,
Aug. 7, 2013, Docket No. 9; Compl., July 23, 2013, Docket No. 1.)
Under Minnesota Local Rules, a party may only file a motion to reconsider with
express permission of the court, and “[a] party must show compelling circumstances to
obtain such permission.”

D. Minn. LR 7.1(j).

This is because motions for

reconsideration “serve the limited function of correcting manifest errors of law or fact or
to present newly discovered evidence.” Matthew v. Unum Life Ins. Co. of Am., 639 F.3d
857, 863 (8th Cir. 2011) (internal quotation marks omitted). District courts have broad
discretion in determining whether to permit a party to file a motion to reconsider. See

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Eckerson v. Blowers, Civ. No. 07-984, 2008 WL 239556, at *1 (D. Minn. Jan. 29, 2008)
(citing Hagerman v. Yukon Energy Corp., 839 F.3d 407, 413 (8th Cir. 1988)).
Here, the order from the Southern District of Florida relied upon by Perry does not
demonstrate that the Court’s December 5 order contains any manifest errors of law or
fact. Perry’s Florida case involves different defendants and an entirely different set of
factual circumstances than the present lawsuit based upon his pacemaker. Therefore, the
decision of the magistrate judge in the Florida case to allow Perry to proceed without first
paying a filing fee does not alter this Court’s conclusion that Perry failed to meet the
imminent danger exception to the three strikes rule in this action. Consequently, the
Court finds no compelling circumstances justifying the filing of a motion for
reconsideration, and Perry will not be allowed to proceed IFP.1

ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Plaintiff’s Refiled Motion for Reconsideration for Leave to
Proceed In Forma Pauperis [Docket No. 16] is DENIED.

1

To the extent Perry’s request to file a motion for reconsideration could be construed as a
request that his case be transferred to a different district judge, the Court denies such a request.
Perry requests that a panel of district court judges be convened to hear his case based on his
contention that the Court’s December 5 order reflects racial animus against Perry. (Mot. for
Reconsideration at 3, Dec. 19, 2013, Docket No. 16.) But Perry has failed to identify any
“personal bias or prejudice arising from an extrajudicial source,” see Rossbach v. United States,
878 F.2d 1088, 1089 (8th Cir. 1989), and therefore has no basis for recusal or his requested
en banc hearing. Perry’s general criticisms of the Court have no basis in law or fact, and
therefore do not form the basis for any relief. See United States ex rel. Sammarco v. Ludeman,
Civ. No. 09-880, 2010 WL 681454, *4 (D. Minn. Feb. 25, 2010) (dismissing unfounded
criticisms of a magistrate judge as not providing any basis for relief).

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Perry shall have thirty (30) days from the date of this order to pay the full $350.00
filing fee for this case. If the filing fee is not paid within the specified period, the Court
will dismiss this case.

DATED: February 12, 2014
at Minneapolis, Minnesota.

____s/
____
JOHN R. TUNHEIM
United States District Judge

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