Opinion
CIV. NO. 19-00062 SOM-KJM
03-07-2019
JOHN ROBERT DEMOS, JR., Plaintiff, v. THE U.S., THE U.S.A., WASH. D.C., Defendants.
ORDER DENYING MOTION FOR RECONSIDERATION AND APPLICATIONS TO PROCEED IN FORMA PAUPERIS
On February 6, 2019, this court dismissed this action without prejudice to Plaintiff's refiling with concurrent payment of the filing fee, and warned Plaintiff that it would take no action on any documents filed without such payment. See Dismissal Order, ECF No. 4, PageID #17-18. The court found that Plaintiff, a Washington prisoner proceeding pro se, has accrued three "strikes" pursuant to 28 U.S.C. § 1915(g), did not allege that he was in imminent danger of serious physical injury when he commenced this action, and therefore cannot proceed without payment of the civil filing fee. Id.; see also Andrews v. Cervantes, 493 F.3d 1047, 1053, 1055 (9th Cir. 2007).
Plaintiff has now filed two in forma pauperis applications showing that he is indigent, and he seeks reconsideration on this basis. Plaintiff has neither submitted the filing fee nor alleged facts showing that he was in imminent danger of serious physical injury when he brought this action. See ECF Nos. 7, 10.
"A motion for reconsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law," and it "may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation." Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks, citations, and emphasis omitted).
Because Plaintiff does not plausibly allege that he was in imminent danger of serious physical injury when he brought this action, he may not proceed in forma pauperis in this action and there is no basis to reconsider the Dismissal Order filed on February 6, 2019.
Plaintiff's Motion for Reconsideration and Applications to Proceed In Forma Pauperis are DENIED. The court will take no further action on any documents filed herein.
IT IS SO ORDERED.
DATED: March 7, 2019.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
See, e.g., Demos v. State of Washington, No. 1:09-cv-1000 (D. Ill., Jun. 23, 2010); Demos v. United States, No. 1:08-cv-11366 (D. Mass. Aug. 14, 2008); Demos v. Doe, No. 3:00-cv-00824 (S.D. Cal., Jul. 20, 2000).