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Anthony R. Turner v. Matthew Cates

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 26, 2011

ANTHONY R. TURNER, PLAINTIFF,
v.
MATTHEW CATES, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

ORDER

On September 8, 2011, plaintiff filed a document the court construes as a motion for reconsideration of the court's August 22, 2011 order in which the court found that plaintiff has "struck out" pursuant to 28 U.S.C. § 1915(g) and must pay the $350 filing fee to proceed with this action. Pursuant to 28 U.S.C. § 636(c), plaintiff has consented to all proceedings in this matter being held before a United States Magistrate Judge.

A court may reconsider a ruling under either Federal Rule of Civil Procedure 59(e) or 60(b). See Sch. Dist. Number. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). "Reconsideration 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." Id. at 1263.

Plaintiff does not present newly discovered evidence, there has not been a change in controlling law and the August 22, 2011 order is neither erroneous or unjust. Therefore, plaintiff's motion for reconsideration will be denied.

In the document filed September 8, 2011, plaintiff also asks that the undersigned recuse. Essentially, plaintiff seeks recusal because he disagrees with the court's August 22, 2011 order. This is not a valid basis for recusal. See 28 U.S.C. § 455. Therefore, plaintiff's request will be denied.

Finally, the court notes that plaintiff was ordered to pay the $350 filing fee for this action by September 15, 2011 and was warned that failure to do so would result in dismissal. Plaintiff has not paid the filing fee so this matter will be dismissed.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's September 8, 2011 motion for reconsideration is denied;

2. Plaintiff's September 8, 2011 request that the undersigned recuse is denied;

and

3. This case is dismissed.

20110926

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