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Petillo v. Jasso

United States District Court, E.D. California

November 14, 2019

ISAIAH J. PETILLO, Plaintiff,
v.
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 DEADLINE

          LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE

         I. Introduction

         Plaintiff Isaiah J. Petillo is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983.

         On July 3, 2019, Plaintiff filed a complaint and an application to proceed in forma pauperis. (ECF Nos. 1, 2.)

         On July 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.)

         Also, on July 8, 2019, Plaintiff filed a second application to proceed in forma pauperis. (ECF No. 6.)

         On 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. (Id.)

         On 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.

         However, 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.

         II. Motion for Reconsideration

         Federal 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.”

         “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 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).

         Here, 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, 2019.[1]

         However, 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. ยง 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 ...


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