Bacon v. Cox et al

Filing 8

ORDER that the 6 Motion to Alter or Amend is construed as a Motion for Reconsideration and Denied. This action will be dismissed without prejudice unless Plaintiff pays the $400.00 filing fee in full within 15 days of entry of this Order. Signed by Judge Richard F. Boulware, II on 2/9/2018. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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PERCY LAVAE BACON,

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Plaintiff,

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Case No. 2:17-cv-01744-RFB-GWF
ORDER

v.
JAMES COX et al.,

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Defendants.

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I.

DISCUSSION

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On January 24, 2018, the Court denied Plaintiff’s applications to proceed in forma

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pauperis because Plaintiff had “three strikes” pursuant to 28 U.S.C. § 1915(g). (ECF No.

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5 at 1-2). The Court also found that Plaintiff failed to plausibly allege that he was in

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imminent danger of serious physical injury at the time of filing the complaint. (Id. at 2).

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Specifically, Plaintiff had submitted his complaint on June 23, 2017 but was suing prison

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officials for events that took place in 2015. (Id.) The Court informed Plaintiff that it would

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dismiss the case without prejudice unless Plaintiff paid the $400 filing fee in full within

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thirty (30) days. (Id.)

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On February 5, 2018, Plaintiff filed a motion to alter or amend pursuant to Federal

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Rule of Civil Procedure 59. (ECF No. 6). In the motion, Plaintiff alleges that prison

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officials had placed his life in imminent danger in 2015 when Plaintiff had to expose

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himself to the excessive heat warning at that time. (Id. at 1-5).

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The Court construes the motion as one for reconsideration. A motion to reconsider

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must set forth “some valid reason why the court should reconsider its prior decision” and

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set “forth facts or law of a strongly convincing nature to persuade the court to reverse its

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prior decision.” Frasure v. United States, 256 F.Supp.2d 1180, 1183 (D. Nev. 2003).

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Reconsideration is appropriate if this Court “(1) is presented with newly discovered

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evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if

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there is an intervening change in controlling law.” Sch. Dist. No. 1J v. Acands, Inc., 5

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F.3d 1255, 1263 (9th Cir. 1993). “A motion for reconsideration is not an avenue to re-

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litigate the same issues and arguments upon which the court already has ruled.” Brown

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v. Kinross Gold, U.S.A., 378 F.Supp.2d 1280, 1288 (D. Nev. 2005).

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The Court denies the motion for reconsideration. Plaintiff reiterates the allegations

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in his complaint. However, as explained in the Court’s prior order, Plaintiff has not

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established imminent danger of serious physical injury at the time of filing the complaint

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in 2017 for events that happened in 2015. As such, Plaintiff has not demonstrated that

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the Court committed clear error or that its initial decision was manifestly unjust.

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II.

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CONCLUSION
For the foregoing reasons, it is ordered that the motion to alter or amend (ECF No.

6) is construed as a motion for reconsideration and denied.
It is further ordered that this action will be dismissed without prejudice unless
Plaintiff pays the $400.00 filing fee in full within fifteen (15) days of entry of this order.

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DATED THIS 9th day of February 2018.

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RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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