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Dixon v. Robinson

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


September 6, 2007

BENNIE DIXON, CDCR #F-00012 PLAINTIFF,
v.
PATRICIA ROBINSON, ET AL.., DEFENDANTS.

The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION [Doc. No. 9]

On March 23, 2007, Bennie Dixon ("Plaintiff"), an inmate currently incarcerated at the Richard J. Donovan Correctional Facility, California and proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. Subsequently, Plaintiff filed a Motion to Proceed In Forma Pauperis ("IFP") on May 30, 2007. On August 13, 2007, this Court denied Plaintiff's Motion to Proceed IFP as barred by 28 U.S.C. § 1915(g). See Aug. 13, 2007 Order at 4.

Plaintiff now seeks reconsideration of the Court's Order because he believes that the Court erred in determining that the action Dixon v. Hernandez, et al. S.D. Cal. Civil Case No. 06-2656 H (AJB) was a "strike" pursuant to 28 U.S.C. § 1915(g).

I. Plaintiff's Motion for Reconsideration

A. Standard of Review

The Federal Rules of Civil Procedure do not expressly provide for motions for reconsideration.*fn1 However, a motion for reconsideration may be construed as a motion to alter or amend judgment under Rule 59(e) or Rule 60(b).*fn2 See Osterneck v. Ernst & Whinney, 489 U.S. 169, 174 (1989); In re Arrowhead Estates Development Co., 42 F.3d 1306, 1311 (9th Cir. 1994). In Osterneck, the Supreme Court stated that "a postjudgment motion will be considered a Rule 59(e) motion where it involves 'reconsideration of matters properly encompassed in a decision on the merits.'" Id. at 174 (quoting White v. New Hampshire Dep't of Employ't Sec., 455 U.S. 445, 451 (1982)). Under Rule 59(e), "[r]econsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law. There may also be other, highly unusual, circumstances warranting reconsideration." School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (citations omitted).

B. Discussion

In his Motion, while not entirely clear, it appears that Plaintiff is arguing that the action he filed in Dixon v. Hernandez, et al. S.D. Cal. Civil Case No. 06-2656 H (AJB) should not be considered a "strike" for § 1915(g) purposes. As the Court informed Plaintiff in the August 13 Order, a prisoner with three or more "strikes" pursuant to 28 U.S.C. § 1915(g) may not proceed IFP. See Aug. 13, 2007 Order at 2 (citing Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). The matter filed by Plaintiff in Dixon v. Hernandez, et al. S.D. Cal. Civil Case No. 06-2656 H (AJB) is clearly a strike because it was dismissed as frivolous pursuant to 28 U.S.C. § 1915A(b)(1). This constitutes a "strike" for § 1915(g) purposes.

In short, Plaintiff has provided no newly discovered evidence, has failed to show clear error or that the Court rendered a manifestly unjust decision, and has further failed to identify any intervening changes in controlling law that would demand reconsideration of the Court's Order. School Dist. No. 1J, 5 F.3d at 1263.

II. Conclusion and Order

Accordingly, the Court DENIES Plaintiff's Motion for Reconsideration [Doc. No. 9]. The Clerk of Court shall close the file.

IT IS SO ORDERED.


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