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Taylor v. Carter

United States District Court, E.D. California

September 24, 2014

KIRELL TAYLOR, Plaintiff,
v.
D. CARTER, et al., Defendants.

ORDER DENYING PLAINTIFF'S SECOND MOTION FOR RECONSIDERATION OF REVOCATION OF IN FORMA PAUPERIS STATUS [ECF No. 21]

STANLEY A. BOONE, Magistrate Judge.

Plaintiff Kirell Taylor is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

On September 19, 2014, Plaintiff filed a second motion for reconsideration of the Court's May 5, 2014, order revoking his in forma pauperis status and dismissing the case.

On May 5, 2014 the undersigned revoked Plaintiff's in forma pauperis status initially granted on August 23, 2013, based on the fact that Plaintiff suffered three or more strikes under 28 U.S.C. § 1915(g), at the time this action was filed, and the complaint filed pursuant to 42 U.S.C. § 1983, was dismissed to re-filing by Plaintiff with the accompanying filing fee.[1] (ECF No. 17.)

Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the district court. "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, " Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co. , 571 F.3d 873, 880 (9th Cir. 2009) (internal quotation marks and citations omitted), and "[a] party seeking reconsideration must show more than a disagreement with the Court's decision, and recapitulation..." of that which was already considered by the Court in rendering its decision." U.S. v. Westlands Water Dist. , 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001).

Plaintiff does not dispute that he has three "strikes" but contends he qualifies for the imminent danger exception under § 1915(g). The three strikes provision precludes Plaintiff from proceeding in forma pauperis unless he was, at the time of filing the complaint, under imminent danger of serious physical injury. 28 U.S.C. § 1915(g). In Plaintiff's complaint, he alleges the use of excessive force, retaliation, and due process allegations arising from his placement and retention in administrative segregation following the issuance of three rules violations.[2] Based on Plaintiff's allegations, the Court found that Plaintiff failed to make a "plausible allegation" that he faced imminent danger of serious physical injury at the time he filed the complaint. Andrews v. Cervantes , 493 F.3d 1047, 1055 (9th Cir. 2007).

In Plaintiff's motion for reconsideration, Plaintiff merely disagrees with the Court's analysis and decision as to whether he alleged sufficient "imminent danger, " an exception to the three strikes provision under 28 U.S.C. § 1915(g). As stated in the Court's May 5, 2014, order, and the denial of Plaintiff's previous motion for reconsideration, Plaintiff's complaint does not set forth any plausible allegations that he faced imminent danger of serious physical injury. (ECF No. 17, Order at 2; ECF No. 20, Order at 2.) Reconsideration is not a vehicle by which to obtain a second bite at the apple; it is reserved for extraordinary circumstances. United States v. Westlands Water Dist. , 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001); see also In re Pacific Far East Lines, Inc. , 889 F.2d 242, 250 (9th Cir. 1989) (Fed. R. Civ. P. 60(b)(6) may provide relief where parties were confronted with extraordinary circumstances but it does not provide a second change for parties who made deliberate choices.) Plaintiff's disagreement with the Court's decision is not grounds for reconsideration.

Based on the foregoing,

IT IS HEREBY ORDERED that Plaintiff's second motion for reconsideration is DENIED.

IT IS SO ORDERED.


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