Opinion
1:20-cv-00740-DAD-JLT (PC)
09-29-2021
GUILLERMO TRUJILLO CRUZ, Plaintiff, v. GOMEZ, et al., Defendants.
ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION (Doc. No. 28)
Plaintiff Guillermo Trujillo Cruz is a state prisoner proceeding pro se in this closed civil rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On June 30, 2020, the undersigned adopted the findings and recommendations issued by the assigned magistrate judge (Doc. No. 7), denied plaintiff's motions to proceed in forma pauperis (Doc. Nos. 5, 12), and directed plaintiff to pay the required filing fee in order to proceed with this action. (Doc. No. 13.) Instead of paying the required filing fee, plaintiff filed a motion for reconsideration of the court's order denying his motions to proceed in forma pauperis and directing him to pay the required filing fee. (Doc. No. 14.) On August 17, 2020, the court denied plaintiff's motion for reconsideration. (Doc. No. 15.) On August 24, 2020, plaintiff appealed the court's order denying his motion for reconsideration to the Ninth Circuit Court of Appeals, which dismissed plaintiff's appeal on February 16, 2021 noting that it was “so insubstantial as to not warrant further review.” (Doc. No. 21.)
On February 26, 2021, the court dismissed this action due to plaintiff's failure to pay the filing fee as required. (Doc. No. 22.) On March 12, 2021, plaintiff appealed the court's order of dismissal. (Doc. No. 24.) On September 16, 2021, the Ninth Circuit Court of Appeals again dismissed the appeal as “so insubstantial as to not warrant further review.” (Doc. No. 27.)
On September 24, 2021, plaintiff filed the pending second motion for reconsideration of the court's order (Doc. No. 22) dismissing this action without prejudice due to his failure to pay the filing fee as required. (Doc. No. 28.)
Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the district court. Rule 60(b) permits a district court to relieve a party from a final order or judgment on grounds of: “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence . . .; (3) fraud . . . of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied . . . or (6) any other reason justifying relief from the operation of the judgment.” Fed.R.Civ.P. 60(b). A motion under Rule 60(b) must be made within a reasonable time, in any event “not more than one year after the judgment, order, or proceeding was entered or taken.” Id.
Reconsideration of a prior order is an extraordinary remedy “to be used sparingly in the interests of finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (citation omitted); see also Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (addressing reconsideration under Rule 60(b)). In seeking reconsideration under Rule 60, the moving party “must demonstrate both injury and circumstances beyond his control.” Harvest, 531 F.3d at 749 (internal quotation marks and citation omitted).
“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 and citations omitted) (emphasis in original). Further, Local Rule 230(j) requires, in relevant part, that a movant show “what new or different facts or circumstances are claimed to exist which did not exist or were not shown” previously, “what other grounds exist for the motion, ” and “why the facts or circumstances were not shown” at the time the substance of the order which is objected to was considered.
Here, plaintiff's motion does not identify any basis under Rule 60(b) upon which this court should reconsider its order dismissing this action due to plaintiff's failure to pay the filing fee as required. In his motion, plaintiff contends that the court should have allowed this action to proceed even though he failed to pay the required filing fee as directed because, according to plaintiff, the in forma pauperis statute, 28 U.S.C. § 1915(b), provides for funds to be collected from his inmate trust account to pay the filing fee “when the funds exist.” (Doc. No. 28 at 1.) Plaintiff's contention is frivolous. As the court has explained in multiple orders, the court denied plaintiff's motions to proceed in forma pauperis because he had acquired more than three “strike” dismissals prior to initiating this action, and he failed to show that he was under imminent danger of serious physical injury at the time he filed suit. 28 U.S.C. § 1915(g).
Plaintiff next contends that he qualifies for the “imminent danger” exception of 28 U.S.C. § 1915(g) based on incidents from 2014. (Id. at 2.) The court already addressed this claim several times and found that plaintiff's references to incidents that allegedly occurred in 2014 and 2015 fail to show that he was under imminent danger of serious physical injury when he filed suit in 2017. (Doc. Nos. 7 at 2; 13 at 2; 15 at 2.) Plaintiff provides no new facts or circumstances that the court has not already considered in this regard.
Plaintiff simply has provided no basis under Rule 60(b) to support reconsideration of the court's order dismissing his action without prejudice.
Accordingly, 1. Plaintiff s motion for reconsideration (Doc. No. 28) is denied;
2. This case shall remain closed; and
3. No further filings will be entertained by the court in this closed case.
IT IS SO ORDERED.