United States District Court, E.D. California
ISAIAH J. PETILLO, Plaintiff,
REYNALDO JASSO, et al., Defendants.
ORDER DENYING PLAINTIFF'S THIRD APPLICATION TO
PROCEED IN FORMA PAUPERIS, CONSTRUED AS A MOTION FOR
RECONSIDERATION (ECF NO. 11) TWENTY-ONE (21) DAY
LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE
Isaiah J. Petillo is a state prisoner proceeding pro
se in this civil rights action pursuant to 42 U.S.C.
3, 2019, Plaintiff filed a complaint and an application to
proceed in forma pauperis. (ECF Nos. 1, 2.)
8, 2019, the assigned Magistrate Judge issued findings and
recommendations that Plaintiff's application to proceed
in forma pauperis be denied pursuant to 28 U.S.C.
§ 1915(g) and that Plaintiff be required to pay the
$400.00 filing fee in full in order to proceed with this
action. (ECF No. 5.) The findings and recommendations were
served on Plaintiff and contained notice that any objections
thereto were to be filed within thirty (30) days after
service of the findings and recommendations. (Id.)
on July 8, 2019, Plaintiff filed a second application to
proceed in forma pauperis. (ECF No. 6.)
September 13, 2019, after Plaintiff failed to file objections
to the findings and recommendations, the undersigned issued
an order adopting the July 8, 2019 findings and
recommendations in full and denied both of Plaintiff's
applications to proceed in forma pauperis pursuant
to 28 U.S.C. § 1915(g). (ECF No. 8.) The undersigned
ordered Plaintiff to pay the $400.00 filing fee in full
within twenty-one days from the date of service of the order.
September 30, 2019, Plaintiff filed a motion for a 30-day
extension of time to pay the filing fee. (ECF No. 9.) On
October 1, 2019, the Magistrate Judge granted Plaintiff an
additional 30 days to pay the $400.00 filing fee in full.
(ECF No. 10.) Therefore, Plaintiff was required to pay the
$400.00 filing fee in full on or before November 4, 2019.
on October 28, 2019, rather than pay the $400.00 filing fee
in full, Plaintiff filed a third application to proceed
in forma pauperis. (ECF No. 11.) The Court
interprets Plaintiff's motion as a motion for
reconsideration of the Court's September 13, 2019 order
adopting the July 8, 2019 findings and recommendations,
denying Plaintiff's applications to proceed in forma
pauperis, and ordering Plaintiff to pay the $400.00
filing fee in full in order to proceed with this action.
Motion for Reconsideration
Rule of Civil Procedure 60(b)(6) permits 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 quotation marks and citation omitted). “A
party moving for relief under Rule 60(b)(6) must demonstrate
both injury and circumstances beyond [their]
control[.]” Id. (internal quotation marks and
citation omitted). Additionally, Local Rule 230(j) requires
that, when a party makes a motion for reconsideration, the
party must show “what new or different facts or
circumstances are claimed to exist or were not shown upon
such prior motion, or what other grounds exist for the
motion” and “why the facts and circumstances were
not shown at the time of the prior motion.”
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 citation omitted).
Therefore, “[a] party seeking reconsideration must show
more than a disagreement with the Court's decision, and
recapitulation of the cases and arguments considered by the
[C]ourt before rendering its original decision fails to carry
the moving party's burden.” United States v.
Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D.
Cal. 2001) (internal quotation marks and citation omitted).
Plaintiff disputes the Court's findings that he does not
meet the imminent danger exception to the three strikes rule.
28 U.S.C. § 1915(g). Specifically, Plaintiff argues that
he is in ongoing imminent danger of serious physical harm
because Defendant Ochoa and other non-party prison staff
members harassed and/or retaliated against Plaintiff on
several occasions in September 2018, because non-party
correctional officers threatened, harassed and/or retaliated
against Plaintiff in October 2019, and because he was
physically attacked by his cellmate on or about October 13,
Plaintiff signed his complaint on June 14, 2019 and the
complaint was filed with the Court on July 3, 2019. (ECF No.
1.) With regards to the events that Plaintiff alleges
occurred in September 2018, before Plaintiff's complaint
was filed, Plaintiff has failed to explain why he did not
allege these facts in his complaint or raise these facts in
any written objections to the July 8, 2019 findings and
recommendations recommending that Plaintiff's application
to proceed in forma pauperis be denied pursuant to
28 U.S.C. § 1915(g), as required by Local Rule 230(j).
Further, since Plaintiff's allegations regarding any
harassment and/or retaliation in September 2018 occurred
approximately 8 ...