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Allen Lee Rodriguez v. William D. Gore


May 2, 2011


The opinion of the court was delivered by: United States District Judge William Q. Hayes

CDCR #V-35218,


[ECF No. 6]


On March 15, 2011, Allen Lee Rodriguez ("Plaintiff"), a prisoner currently incarcerated at the California Rehabilitation Center in Norco, California, and proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983.

On March 29, 2011, the Court dismissed the case without prejudice because Plaintiff failed to pay the $350 civil filing fee required by 28 U.S.C. § 1914(a). See March 29, 2011 Order [ECF No. 3] at 4. The Court further found that while it would normally grant Plaintiff leave to file a Motion to Proceed in forma pauperis (IFP) pursuant to 28 U.S.C. § 1915(a), Plaintiff "is no longer entitled to that privilege" because he has had, while incarcerated, three prior civil actions dismissed because they were frivolous, malicious, or failed to state a claim upon which relief could be granted. Id. at 2-4 (citing 28 U.S.C. § 1915(g)).*fn1 "Pursuant to 28 U.S.C. § 1915(g), a prisoner with three strikes or more cannot proceed IFP." Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). Before reaching this conclusion, the Court was careful to review Plaintiff's Complaint and make an independent determination that it included "no plausible allegation" of imminent danger of serious physical injury which might except him from § 1915(g)'s three-strikes bar. Id. at 4 (citing Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007)).

On April 15, 2011, the Court received a one-page letter entitled, "In re correspondence dated 3-29-11" [ECF No. 6], in which Plaintiff "ask[s] that the Court grant a motion to reconsider in the administration of everything a courthouse [is] supposed to be." Despite non-compliance with the Federal Rules of Civil Procedure and the Southern District's Local Rules, the Court directed the Clerk to file Plaintiff's letter and now construes it to be a Motion for Reconsideration of its March 29, 2011 Order and Judgment. See Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003) ("Courts have a duty to construe pro se pleadings liberally, including pro se motions as well as complaints."); Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988) (court must construe civil rights cases filed in pro se liberally "and must afford plaintiff the benefit of any doubt"); Christensen v. CIR, 786 F.2d 1382, 1384 (9th Cir. 1986) (liberally construing pro se taxpayer's motion to "place statements in the record" as a motion for leave to amend).


A. Standard of Review

The Federal Rules of Civil Procedure do not expressly provide for motions for reconsideration.*fn2 However, where a ruling has resulted in a final judgment or order, a request for reconsideration may be considered a motion to alter or amend judgment pursuant to FED.R.CIV.P. 59(e), or a motion for relief from judgment pursuant to FED.R.CIV.P. 60(b). School Dist. No. 1J Mulnomah Co. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). A motion under Rule 59(e), "must be filed no later than 28 days after the entry of the judgment," FED.R.CIV.P. 59(e), "should not be granted absent highly unusual circumstances," Herbst v. Cook, 260 F.3d 1039, 1044 (9th Cir. 2001), and is appropriate only if the district court "(1) is presented with newly discovered evidence, (2) committed clear error or the initial decision is manifestly unjust, or (3) if there is an intervening change in controlling law." Nunes v. Ashcroft, 375 F.3d 805, 807 (9th Cir. 2004) (citing School Dist. No. 1J, 5 F.3d at 1263). Similarly, under Rule 60, a motion for "relief from a final judgment, order or proceeding" may be filed within a "reasonable time," but usually must be filed "no more than a year after the entry of the judgment or order or the date of the proceeding." FED.R.CIV.P. 60(c)(1). Reconsideration under Rule 60 may be granted only in the case of: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence; or (3) fraud; or if (4) the judgment is void; (5) the judgment has been satisfied; or (6) for any other reason that justifies relief. FED.R.CIV. P. 60(b). School Dist. No. 1J , 5 F.3d at 1262.

Under both Rule 59 and 60, reconsideration is left to the sound discretion of the district court, Navajo Nation v. Norris, 331 F.3d 1041, 1046 (9th Cir. 2003), and "is not a substitute for appeal." Twentieth Century-Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1980).

B. Discussion

Plaintiff's letter was filed within 28 days of the Court's March 29, 2011 Order, thus, the Court will consider his request for reconsideration pursuant to both Local Rule 7.1(i) and FED.R.CIV.P. 59. In his letter, the Plaintiff claims that "everything [he] ha[s] received from this court has been nothing more than a manipulative interpretation of law exercised in [his] case to discourage [him] from pursuing [his] claims and producing knowingly [u]njust results." Pl.'s Mot. [ECF No. 6] at 1. Plaintiff further accuses a judge of "lying" and "making [a] false ruling to protect corrupt officers and public defenders who are responsible" for his current term of incarceration. Id.

While Plaintiff claims he "can't believe what [he] [is] seeing from federal judges and a court of law," id., he does not argue that this Court erred in any way specific way when it dismissed his case for failing to pay the $350 filing fee required by 28 U.S.C. § 1914(a), or denied him an opportunity to proceed IFP pursuant to 28 U.S.C. § 1915. For example, Plaintiff does not claim to have actually paid the $350 filing fee; nor does he claim the Court mistakenly considered any of his previous cases to be "strikes" pursuant to 28 U.S.C. § 1915(g). Instead, Plaintiff merelycasts aspersions upon the integrity of the judicial system, "corrupt officers," "lying" investigators, and the "irresponsible" public defenders charged with defending him in his underlying criminal case. See Pl.'s Mot. at 1. These types of unsupported accusations, however, do not provide the Court with any newly discovered evidence, show clear error or manifest injustice; nor do they identify any intervening change in controlling law which would justify reconsideration of its March 29, 2011 Order. See Nunes, 375 F.3d 807; School Dist. No. 1J, 5 F.3d at 1263.


Accordingly, Plaintiff's Motion for Reconsideration of this Court's March 29, 2011 Order and Judgment [ECF No. 6] is DENIED.

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