United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR
RECONSIDERATION (ECF NO. 13) TWENTY-ONE (21) DAY
LAWRENCE J. O'NEILL, UNITED STATES CHIEF DISTRICT JUDGE
Allen Hammler is a state prisoner proceeding pro se
in this civil rights action pursuant to 42 U.S.C. §
initiated this action on August 1, 2019. (ECF No. 1.) On
September 26, 2019, Plaintiff filed an application to proceed
in forma pauperis. (ECF No. 7.)
October 2, 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. 10.) 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.) Plaintiff timely filed objections on October
24, 2019. (ECF No. 11.)
November 2, 2019, the undersigned issued an order adopting
the October 2, 2019 findings and recommendations in full and
denying Plaintiff's application to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915(g). (ECF No.
12.) 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.)
November 22, 2019, Plaintiff filed a motion for
reconsideration pursuant to Federal Rule of Civil Procedure
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 determination that
Hammler v. Director of CDCR, No. 1:17-cv-00097-NJV
(N.D. Cal.) (“CDCR”) is appropriately
counted as a strike against Plaintiff pursuant to 28 U.S.C.
§ 1915(g). Specifically, Plaintiff asserts that this
Court should reconsider its determination that CDCR
is properly counted as a strike against Plaintiff because the
District Judge in Hammler v. State of California,
No. 1:19-cv-00784-DAD-BAM (E.D. Cal.) determined that
CDCR does not count as a strike against Plaintiff.
it is well settled that, in determining whether a prior
dismissal qualifies as a strike pursuant to § 1915(g), a
reviewing court must “careful[ly] evaluat[e] …
the order dismissing an action, and other relevant
information” and “make an independent
assessment” of whether the prior action had been
dismissed because the action was “frivolous, malicious,
or failed to state a claim.” Andrews v. King,
398 F.3d 1113, 1121 (9th Cir. 2005); see also Knapp v.
Hogan, 738 F.3d 1106, 1109-10 (9th Cir. 2013). Here, the
undersigned has carefully evaluated the April 27, 2017 order
dismissing CDCR and the March 2, 2017 order
screening Plaintiff's complaint in CDCR.
Further, after conducting that review, the undersigned has
independently determined that the prior dismissal in
CDCR qualifies as a strike pursuant to §
1915(g) because the action was dismissed after Plaintiff
failed to file an amended complaint following a screening
order dismissing his original complaint for failure to state
a claim and failure to exhaust his administrative remedies
prior to filing suit. See Harris v. Mangum, 863 F.3d
1133, 1143 (9th Cir. 2017) (“Accordingly, we hold that
when (1) a district court dismisses a complaint on the ground
that it fails to state a claim, (2) the court grants leave to
amend, and (3) the plaintiff then fails to file an amended
complaint, the dismissal counts as a strike under §
1915(g).”); El-Shaddai v. Zamora, 833 F.3d
1036, 1042 (9th Cir. 2016) (stating that a dismissal for
failure to exhaust administrative remedies counts as a strike
under § 1915(g) if the failure to exhaust is apparent
from the face of the complaint).
Plaintiff's motion for reconsideration is denied.
Plaintiff's motion for reconsideration was pending, the
time allotted for Plaintiff to pay the $400.00 filing fee in
full expired. Therefore, the Court finds that the interest of
justice requires that Plaintiff be granted twenty-one (21)
days from the date of service of this ...