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Bowell v. Montoya

United States District Court, E.D. California

September 12, 2019

JAMES BOWELL, Plaintiff,
v.
F. MONTOYA, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS' MOTION TO SET ASIDE COURT'S ORDER BE GRANTED, AND PLAINTIFF'S MOTION FOR RECONSIDERATION OF COURT'S ORDER BE DENIED AS MOOT (ECF NOS. 48, 49.) OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN (14) DAYS

          GARY S. AUSTIN UNITED STATES MAGISTRATE JUDGE

         I. BACKGROUND

         James Bowell (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff's First Amended Complaint filed on May 3, 2018, against Defendants Montoya and Carter for violation of due process under the Fourteenth Amendment, and against Defendants Killmer and Lopez for conspiracy to place Plaintiff at risk of serious harm and for failure to protect Plaintiff under the Eighth Amendment. (ECF No. 16.)[1]

         On January 10, 2019, Defendants filed a motion for an order revoking Plaintiff's in forma pauperis status based on his accumulation of “three strikes” under U.S.C. § 1915(g). (ECF No. 24.) On April 12, 2019, the court entered findings and recommendations, recommending that Defendants' motion be granted. (ECF No. 39.) On May 1, 2019, the district court adopted the findings and recommendations granting Defendants' motion to revoke Plaintiff's in forma pauperis status and requiring Plaintiff to pay the $398.00 balance of the filing fee for this case, within thirty days. (ECF No. 42.) On May 20, 2019, Plaintiff requested a 120-day extension of time to pay the filing fee which was granted by the court on June 4, 2019. (ECF. Nos. 45, 47.) To date, Plaintiff has not paid the filing fee.

         On August 27, 2019, Defendants filed a motion to set aside the court's May 1, 2019 order in light of a decision by the Ninth Circuit Court of Appeals in Harris v. Harris, No. 16-55083, 2019 WL 3938883 (9th Cir. Aug 21, 2019). (ECF No. 48.) On September 3, 2019, Plaintiff filed a motion for reconsideration of the May 1, 2019 order. (ECF No. 49.)

         II. HARRIS V. HARRIS

         On August 21, 2019, in Harris v. Harris, the Ninth Circuit Court of Appeals held that the dismissal of a prior action after declining to exercise supplemental jurisdiction over state law claims did not qualify as a “strike” under 28 U.S.C. § 1915(g). Harris, 2019 WL 3938883, at *3. The Court reasoned that because “[d]ismissal based on a district court's decision not to exercise supplemental jurisdiction is not an enumerated ground under § 1915(g), ” a dismissal on a ground other than frivolousness, maliciousness, or failure to state a claim will not qualify as a strike. Id. (quoting Fourstar v. Garden City Grp., Inc., 875 F.3d 1147, 1152 (D.C. Cir 2017). Thus, “[u]nless an incarcerated litigant has accrued three strikes on grounds plainly enumerated in § 1915(g), she is entitled to IFP status.” Harris, 2019 WL 3938883, at *5.

         III. DEFENDANTS' MOTION TO SET ASIDE THE COURT'S ORDER

         Based on the decision in Harris, Defendants request the court to set aside its May 1, 2019 order revoking Plaintiff's in forma pauperis status. Defendants concede that one of the three cases identified by Defendants as a basis for revoking Plaintiff's IFP status, Bowell v. California Substance Abuse Treatment Facility at Corcoran, E.D. Cal. 1:10-cv-02336-AWI- DLB, no longer qualifies as a strike under Harris because the district court dismissed the case and declined supplemental jurisdiction over Plaintiff's attendant state-law claims. In light of Harris, Defendants assert that it no longer appears that Plaintiff accrued three or more strikes prior to bringing this action. Accordingly, Defendants request the court to “set aside its order revoking Plaintiff's IFP status under Rule 60(b)(6) of the Federal Rules of Civil Procedure, which allows a final order to be set aside for any reason that ‘justifies relief.'” (ECF No. 48 at 3 ¶ II.) Defendants also request that the court allow them 21 days from its order on this motion to file a responsive pleading.

         IV. PLAINTIFF'S MOTION FOR RECONSIDERATION

         A. Motion for Reconsideration

         Plaintiff brings a motion for reconsideration of the May 1, 2019 order revoking his in forma pauperis status.

         Rule 60(b)(6) allows the Court to relieve a party from an order for any reason that justifies relief. Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary circumstances . . .” exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted). The moving party “must demonstrate both injury and circumstances beyond his control . . . .” Id. (internal quotation marks and citation omitted). In seeking reconsideration of an order, Local Rule 230(k) requires Plaintiff to show “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.”

         “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). To succeed, a party must set forth facts or law of a strongly convincing nature to induce the ...


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