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Dunsmore v. Paramo

United States District Court, S.D. California

May 27, 2014

DARRYL DUNSMORE, CDCR #AD-6237, Plaintiff,


LARRY ALAN BURNS, District Judge.

Currently before the Court is Plaintiff's "Motion to Proceed IFP under Imminent Danger" which the Court has construed as a Motion for Reconsideration. (ECF Doc. No. 11.) In this Motion, Plaintiff seeks reconsideration of the Court's April 23, 2014 Order denying Plaintiff's Motion to Proceed in forma pauperis ("IFP") as barred by 28 U.S.C. § 1915(g). In addition, Plaintiff has filed a Motion for Temporary Restraining Order. (ECF Doc. No. 13.)


Procedural History

On March 5, 2014, Plaintiff, proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983, along with a Motion to Proceed IFP.

Finding three prisoner civil actions filed by Plaintiff had been previously dismissed as "frivolous, malicious, or [for] fail[ing] to state a claim, " the Court denied him leave to proceed IFP pursuant to 28 U.S.C. § 1915(g), and dismissed the action for failure to prepay the entire $400 civil filing fee as required by 28 U.S.C. § 1914(a). See April 23, 2014 Order, ECF Doc. No. 5 at 5.


Plaintiff's Motion for Reconsideration

A. Standard of Review

The Federal Rules of Civil Procedure do not expressly provide for motions for reconsideration.[1] However, a motion for reconsideration may be construed as a motion to alter or amend judgment 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). 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). Reconsideration under Rule 60 may be granted 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 justifying relief. FED.R.CIV. P. 60(b).

B. Plaintiff's Arguments

In the Court's April 23, 2014 Order, the Court found that Plaintiff was not entitled to proceed IFP and his Complaint failed to meet the criteria to support finding an exception to the 1915(g) rule. Specifically, in order to proceed IFP in this matter, Plaintiff would have to show that he "faced imminent danger of serious physical injury' at the time of filing." Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007) (hereafter " Cervantes ") (quoting 28 U.S.C. § 1915(g)). The claims that Plaintiff raised in his Complaint have been previously litigated by Plaintiff in separate matters.

Plaintiff claims in his current Motion that he is in "imminent danger" and therefore, should be permitted to proceed IFP. ( See Pl.'s Mot. for Recon., ECF Doc. No. 11 at 5.) Specifically, Plaintiff states that "directly after Plaintiff's complaint was denied the Defendants retaliated by transferring Plaintiff back to C yard in order to punish the Plaintiff for his litigation efforts." ( Id. ) Plaintiff points to Exhibit "A1" which is a notice of classification hearing form dated April 25, 2014. ( Id., Ex. A1.) However, the Ninth Circuit made clear that in order to be able to claim the "imminent danger exception, the Court can only consider "the conditions a prisoner faces at the time the complaint was filed, not at some earlier or later time." Cervantes, 493 F.3d at 1053. By Plaintiff's own admission, the facts upon which he is basing his claims of being in "imminent danger" occurred after Plaintiff filed this action. The alleged retaliatory transfer occurred more than a month after Plaintiff filed his Complaint and thus, Plaintiff still is unable to demonstrate that he was in imminent danger at the time he filed this action.

A motion for reconsideration cannot be granted merely because Plaintiff is unhappy with the judgment, frustrated by the Court's application of the facts to binding precedent or because he disagrees with the ultimate decision. See 11 Charles Alan Wright & Arthur R. Miller Federal Practice & Procedure 2d § 2858 (Supp. 2007) (citing Edwards v. Velvac, Inc., 19 F.R.D. 504, 507 (D. Wis. 1956)). Plaintiff has failed to provide any factual ...

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