The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER GRANTING PLAINTIFF'S MOTION FOR RECONSIDERATION; STRIKING ORDER DISMISSING ACTION; REINSTATING PLAINTIFF'S IN FORMA PAUPERIS STATUS; AND DEEMING DEFENDANTS' MOTION TO DISMISS RESUBMITTED / THE NINTH CIRCUIT
Plaintiff Will Moses, Palmer, III ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This action was filed on April 28, 2006. On March 22, 2010, an order issued granting Defendants' motion to revoke Plaintiff's in forma pauperis status pursuant to 28 U.S.C. § 1915(g) and motion to dismiss, and this action was dismissed. (ECF No. 51.) On April 8, 2010 and April 14, 2010, Plaintiff filed duplicate motions for reconsideration of the order dismissing the action and requests for judicial notice. (ECF Nos. 53, 54, 55, 56.) On April 22, 2010, Plaintiff filed a notice of appeal. (ECF No. 57.) On May 25, 2010, the Ninth Circuit issued an order holding the appellate proceeding in abeyance pending resolution of Plaintiff's motions for reconsideration. (ECF No. 61.) On November 16, 2010, Plaintiff filed a request for decision on the pending motion for reconsideration. (ECF No. 62.) On July 26, 2011, this action was reassigned to the undersigned. (ECF No. 63.)
Plaintiff has filed duplicate motions for reconsideration and the motion and request for judicial notice filed April 14, 2010, are stricken from the record as duplicative. Additionally, based upon the issuance of this order, Plaintiff's motion requesting a decision on the pending motion shall be denied as moot.
Pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, "[o]n motion and just terms, the court may relieve a party . . .from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence . . . (3) fraud . . .; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; . . . or (6) any other reason that justifies relief." Fed. R. Civ. Proc. 60(b). Where none of these factors is present the motion is properly denied. Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442 (9th Cir. 1991). "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).
Plaintiff claims that the Court erroneously counted dismissal of his prior action as a strike. Since this action is not a strike he is not precluded from proceeding in forma pauperis pursuant to section 1915(g), or, in the alternative, he should have been allowed an opportunity to pay the full filing fee prior to this action being dismissed. Plaintiff alleges that the Court committed an error in counting his prior dismissals as strikes and his motion for reconsideration is granted.
Section 1915(g) provides that "[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." "[I]f the language of a statute is clear, we look no further than that language in determining the statute's meaning," unless "what seems to be the plain meaning of the statute . . . lead[s] to absurd or impracticable consequences." Seattle-First Nat'l Bank v. Conaway, 98 F.3d 1195, 1197 (9th Cir. 1996) (internal quotations and citations omitted). The language of section 1915(g) is clear: a dismissal on the ground that an action is frivolous, malicious, or fails to state a claim counts as strike. Adherence to the language of section 1915(g) by counting as strikes only those dismissals that were made upon the grounds of frivolity, maliciousness, and/or failure to state a claim does not lead to absurd or impracticable consequences. Federal courts are well aware of the existence of section 1915(g). If a court dismisses an action on the grounds that it is frivolous, malicious, and/or fails to state a claim, the court should state as much. Such a dismissal may then be counted as a strike under section 1915(g).
The Court found that Palmer v. Johnson, No. 2:05-cv-07121-UA-E (C.D.Cal. Nov. 2, 2005); Palmer v. Crawford, No. 3:03-cv-01271-SI (N.D.Cal. May 16, 2003); and Palmer v. Lamarque, No. 3:03-cv-00956-SI (N.D.Cal. May 16, 2003), were dismissed for failure to state a claim and counted as strikes under section 1915(g).
In the order dismissing Palmer v. Johnson, No. 2:05-cv-07121-UA-E (C.D.Cal. Nov. 2, 2005), it is clearly stated that the complaint fails to state a claim upon which relief can be granted. Johnson was dismissed prior to Plaintiff filing the instant action and counts as a strike under section 1915(g).
Plaintiff's complaint in Palmer v. Lamarque, No. 3:03-cv-00956-SI (N.D.Cal. May 16, 2003), was dismissed on April 30, 2003, for failure to state a claim and Plaintiff was granted until May 23, 2003, to file an amendment or an amended complaint. On May 16, 2003, the action was dismissed without prejudice. Plaintiff filed a motion for leave to file an amended complaint on August 5, 2003, and was advised that he could file a new complaint, but could not continue to litigate this action. Plaintiff did not file an amendment or an amended complaint within the time granted by the court. Since the complaint was dismissed for failure to state a claim, this dismissal is a strike under section 1915(g). Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005).
Plaintiff's complaint in Palmer v. Crawford, No. 3:03-cv-01271-SI (N.D.Cal. May 16, 2003), was dismissed with leave to amend. Subsequently, rather than amending the complaint, Plaintiff filed a notice of voluntary dismissal and the action was dismissed. For the purpose of section 1915(g), the dismissal of the action, not the dismissal of the complaint, counts as a strike. Since the dismissal in Crawford was ...