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Bontemps v. Callison

United States District Court, E.D. California

May 15, 2014

CALLISON, Defendant.


KEMBERLY J. MUELLER, District Judge.

Defendant Callison seeks reconsideration of this court's order of March 12, 2014, which declined to adopt the magistrate judge's finding that plaintiff had "struck out" under the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(g) and the resulting recommendation that plaintiff's in forma pauperis (IFP) status be revoked and the case dismissed if plaintiff did not pay the filing fee in full. ECF Nos. 22, 26, 27. Plaintiff has not responded to the motion for reconsideration. Under Local Rule 230( l ), this motion was submitted on the pleadings and the court now DENIES it.


On August 6, 2013, defendant filed a motion to revoke plaintiff's IFP status on the ground that he had three "strikes" within the meaning of the PLRA. ECF No. 15. He argued that plaintiff had filed at least five actions that had been dismissed as frivolous or malicious or for failure to state a claim. He also argued that plaintiff's lengthy litigation history showed that plaintiff was an abusive litigant who has misrepresented his litigation history to the court. Id. at 1. Defendant speculated that more than five of plaintiff's prior actions had been dismissed as frivolous or malicious or for failing to state a claim but noted the documents were not available without paying to retrieve the case files from archives. Id. at 2.

Plaintiff filed an opposition to the motion, but did not directly address defendant's claims, a fact noted in defendant's reply. ECF Nos. 18 and 19.

On November 18, 2013, the magistrate judge recommended that defendant's motion be granted and plaintiff be given thirty days to pay the full filing fee. ECF No. 22. As relevant to the instant motion, the magistrate judge found that of plaintiff's prior actions, three in particular that were dismissed for failure to file amended complaints and failure to prosecute, were strikes because the underlying complaints had been dismissed for failure to state a claim, with leave to amend given. Id. at 3-5.

In the challenged order, the undersigned rejected the argument that the dismissals for failure to prosecute constituted strikes, concluding that dismissal for failure to file an amended complaint or failure to prosecute is not a strike because it does not fall within the plain language of § 1915(g). ECF No. 26 at 2.


"A district court's power to rescind, reconsider, or modify an interlocutory order is derived from the common law, not from the Federal Rules of Civil Procedure." City of Los Angeles v. Santa Monica BayKeeper, 254 F.3d 882, 886 (9th Cir. 2001); McConnell v. Lassen Cnty., No. 2:05-cv-0909 FCD DAD, 2008 WL 4482853, at *2 (E.D. Cal. Oct. 3, 2008) ("Where reconsideration of a non-final order is sought, the court has inherent jurisdiction to modify, alter, or revoke it.'" (quoting United States v. Martin, 226 F.3d 1042, 1048-49 (9th Cir. 2000)). In addition, Federal Rule of Civil Procedure 54(b) authorizes courts to revise "any order or other decision... that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties... at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities." FED. R. CIV. P. 54(b); Regents of Univ. of Calif. v. Bernzomatic, No. 2:10-cv-1224 FCD GGH, 2011 WL 666912, at *2 (E.D. Cal. Feb. 11, 2011) (relying on Rule 54 in deciding whether to reconsider the denial of summary judgment). Reconsideration is appropriate where there has been an intervening change in controlling law, new evidence has become available, or it is necessary to correct clear error or prevent manifest injustice. Cachil Dehe Band of Wintun Indians v. California, 649 F.Supp.2d 1063, 1069 (E.D. Cal. 2009) (citing School Dist. No. 1J Multnomah Cnty. v. AC&S Inc., 5 F.3d 1255, 1263 (9th Cir. 1993)). Defendant here relies on the last premise, the need to correct error. A party should "not use a motion for reconsideration to raise arguments or present new evidence for the first time when it could reasonably have been raised earlier in the litigation, " id., nor should the party "ask the court to rethink matters already decided." American Rivers v. NOAA Fisheries, No. CV-04-00061-RE, 2006 WL 1983178, at *2 (D. Or. Jul. 14, 2006) (citing Motorola, Inc. v. J.B. Rodgers Mech. Contractors, 215 F.R.D. 581, 582 (D. Ariz. 2003)).

Under Local Rule 230(j), the party moving for reconsideration must set forth:

(1) when and to what [j]udge... the prior motion was made; (2) what ruling... was made thereon; (3) what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion; and (4) why the facts or circumstances were not shown at the time of the prior motion.

L.R. 230(j). "To succeed, a party must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision." Knight v. Rios, No. 1:09-cv-00823-AWI-JLT HC, 2010 WL 5200906, at *2 (E.D. Cal. Dec. 15, 2010).

While the court finds defendant has complied with the requirements for requesting reconsideration, upon reconsideration the court ...

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