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Jowell Finley, Cdcr #E-06421 v. B. Silva

September 28, 2011

JOWELL FINLEY, CDCR #E-06421, PLAINTIFF,
v.
B. SILVA, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court

ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION AND DISMISSING CIVIL ACTION FOR FAILING TO PAY FILING FEE REQUIRED BY 28 U.S.C. § 1914(a) [ECF No. 5]

I. PROCEDURAL HISTORY

On June 10, 2010, Plaintiff, a prisoner incarcerated at Centinela State Prison in Imperial, California, and proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983.

Plaintiff did not prepay the $350 filing fee required by 28 U.S.C. § 1914(a) to commence a civil action; instead, he filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [ECF No. 2].

The Prison Litigation Reform Act precludes a prisoner from proceeding IFP 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 can be granted, unless the prisoner is under imminent danger of serious physical injury.

28 U.S.C. § 1915(g). "This subdivision is commonly known as the 'three strikes' provision." Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). "Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP." Id.

After reviewing Plaintiff's litigation history, this Court took judicial notice of three "strikes" Plaintiff accumulated pursuant to 28 U.S.C. § 1915(g) prior to the filing of this action. See June 16, 2011 Order [ECF No. 3] at 3.*fn1 Moreover, the Court noted Plaintiff's Complaint contained no "plausible allegation" to suggest he "faced 'imminent danger of serious physical injury' at the time of filing." Id. (citing Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007) (hereafter "Cervantes"). Therefore, the Court denied Plaintiff's Motion to Proceed IFP as barred by 29 U.S.C. § 1915(g), but granted Plaintiff forty-five days leave in which to pay the full $350 civil filing fee mandated by 28 U.S.C. § 1914(a). Id. at 4.

Plaintiff did not pay the fee, but instead, on July 21, 2011, filed a document entitled "Notice of Appeal" [ECF No. 5]. 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 June 16, 2011 Order.*fn2 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."); KarimPanahi 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).

II. RECONSIDERATION OF 28U.S.C.§1915(g) BAR

A. Standard of Review

The Federal Rules of Civil Procedure do not expressly provide for motions for reconsideration. However, the Court may reconsider matters previously decided under Rule 59(e) or Rule 60(b). 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 ruling may be re-considered under Rule 59(e) motion where it involves "'matters properly encompassed in a [previous] decision on the merits.'" 489 U.S. at 174 (quoting White v. New Hampshire Dep't of Employ't Sec., 455 U.S. 445, 451 (1982)). Under Rule 59(e), however, reconsideration is appropriate only 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." School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (citations omitted).

B. Discussion

In his "Notice" Plaintiff claims the Court denied him permission to proceed IFP "as part of a conspiracy to cover up for prison officials because they are white and Hispanic and [he] is African-American." See Pl.'s Notice [ECF No. 5] ΒΆ 3. Plaintiff further claims the Court's June 16, 2011 Order is "defective because no Judge signed [it]," and because "the Court ignored [his] 'plausible allegations' that ...


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