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Mitchell v. Davey

United States District Court, E.D. California

March 30, 2018

JOHN E. MITCHELL, Plaintiff,
v.
WARDEN D. DAVEY, et al., Defendants.

          ORDER DENYING MOTION TO ALTER OR AMEND JUDGMENT AND/OR RELIEF FROM ORDER (DOC. NO. 61)

         This matter is before the court on plaintiff's motion to alter or amend judgment and/or relief from order. (Doc. No. 61.) Specifically, plaintiff seeks relief from the undersigned's August 4, 2017 order adopting the magistrate judge's findings and recommendations vacating and revoking his in forma pauperis (“IFP”) status, and requiring him to pay the filing fee. (Doc. No. 58.) Plaintiff appears to bring this motion pursuant to Federal Rules of Civil Procedure 59[1] and 60(b). For the reasons stated below, the court will deny plaintiff's motion to alter or amend judgment and/or relief from order.

         BACKGROUND

         At issue in this case is the definition of imminent danger in 28 US.C. § 1915(g), which provides:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detailed 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 may be granted, unless the prisoner is under imminent danger of serious physical injury.

         Before addressing this exception, the court will first address the magistrate judge's findings with respect to plaintiff's IFP status as well as the parties arguments raised in connection with the instant motion.

         In findings and recommendations issued May 2, 2017, the assigned magistrate judge found that plaintiff was not in imminent danger because his claims were for the violation of his free exercise rights under the First Amendment. (Doc. No. 43 at 2.) Specifically, plaintiff brought claims against defendants Robicheaux and Thompson because they failed to provide him with meals consistent with his religion, Islam. (Id.) Apart from this allegation, there were no allegations in plaintiff's complaint suggesting he faced threat of serious injury or imminent danger. (Id.) The magistrate judge also found that the prior dismissals in Mitchell v. Marshall, , C.D. Cal. 2:10-cv-07351-UA-SH (“Marshall I”), Mitchell v. Marshall, , C.D. Cal. No. 2:12-cv-02048-ABC-SH (“Marshall II”), Mitchell v. Norton,, E.D. Cal. No. 1:12-cv-00331-GSA; (“Norton”), [2] and Mitchell v. Beard, , Ninth Circuit No. 15-15470 (“Beard”) constituted strikes under § 1915(g) because in each case it was found that plaintiff had failed to state a claim or because a court found the case frivolous. (Id. at 3-5.) Since plaintiff had suffered three or more strikes and was not in imminent danger, the assigned magistrate judge denied plaintiff's application to proceed IFP. (Id. at 5.) The undersigned adopted those findings and recommendations in full on August 4, 2017. (See Doc. No. 58.)

         Plaintiff filed his motion to alter or amend judgment and/or relief from order on August 18, 2017. (Doc. No. 61.) Therein, plaintiff relies on the Ninth Circuit's decision in Andrews v. Cervantes for the proposition that he need not be in imminent danger at the time he filed his complaint to fall within the exception. See 493 F.3d 1047, 1053 (9th Cir. 2007) (explaining that “it is sufficient for the prisoner to allege that he faces an ongoing danger even if he is not directly exposed to the danger at the precise time he filed the complaint.”). (Id. at 3.) Plaintiff argues in conclusory fashion that imminent danger in this context includes events that are both taking place and about to take place. (Id.) In this vein, he argues the magistrate judge's interpretation of “imminence” was erroneous as a matter of law. (Id. at 3-4.)

         Defendant Thompson filed opposition to plaintiff's motion on September 7, 2017. Therein, defendant Thompson argues that there is no legal basis to grant plaintiff's motion to amend the judgment because plaintiff did not raise the argument upon which he now relies when the imminent danger was originally considered by the court and cannot raise a new argument by way of a motion for reconsideration. (Doc. No. 68 at 3-4.) Defendant notes that plaintiff still does not claim he was in imminent danger at the time he filed the complaint in this case. (Id. at 5.) Defendant Thompson argues that the magistrate judge's interpretation of imminent danger under § 1915(g), which the undersigned adopted, is correct under the law-namely that, the danger must exist at the time the complaint was filed and not at some earlier or later time. (Id. at 4-5.) Defendant Thompson also argues that the danger must be related to the complaint's claims or at least stem from the conduct of the named defendants. (Id. at 6.) Defendant Thompson asserts that, at most, plaintiff's allegations against him suggest that plaintiff was denied an opportunity to exercise his religion, but not that he faced an imminent risk of danger or serious physical injury. (Id.)

         Defendant Robicheaux filed his opposition to plaintiff's motion for relief from judgment on September 8, 2017. (Doc. No. 69.) He argues there are no facts suggesting plaintiff was placed in imminent danger of serious physical injury. (Id. at 2.) Defendant Robicheaux notes that he is not even mentioned in plaintiff's motion for reconsideration. (Id.) Robicheaux also asserts that plaintiff's allegation that he was denied a religious diet in the summer of 2015, in no way suggests that plaintiff faced an ongoing imminent danger. (Id. at 2-3.)

         LEGAL STANDARD

         Rule 60(b) of the Federal Rules of Civil Procedure provides in relevant part:

         On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for ...

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