United States District Court, N.D. California
ANTHONY R. TURNER, Plaintiff,
KATHLEEN ALLISON, et al., Defendants.
ORDER DENYING MOTION FOR RECONSIDERATION
GONZALEZ ROGERS UNITED STATES DISTRICT JUDGE
March 19, 2018, Plaintiff, a state prisoner currently
incarcerated at Salinas Valley State Prison
(“SVSP”), filed a pro se civil rights
complaint under 42 U.S.C. § 1983. Dkt. 1. The operative
complaint was the amended complaint, in which Plaintiff
sought damages for alleged civil rights violations stemming
from his incarceration at SVSP. Dkt. 10.
August 10, 2018, in its Order to Show Cause, the Court found
Plaintiff had “on 3 or more prior occasions, while
incarcerated or detained 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, ” and
further found Plaintiff was not “under imminent danger
of serious physical injury.” See 28 U.S.C.
§ 1915(g). Consequently, the Court ordered Plaintiff to
show cause why the action should not be dismissed pursuant to
28 U.S.C. § 1915 (g). See Andrews v. King, 398
F.3d 1113, 1121 (9th Cir. 2005).
September 13, 2018, Plaintiff filed his response to the Order
to Show Cause wherein he seemed to contest the Court's
finding that he is not “under imminent danger of
serious physical injury” within the meaning of section
1915(g). Dkt. 19.
March 15, 2019, the Court determined that Plaintiff had not
shown cause why this case should not be dismissed and IFP
should not be denied under Section 1915(g), stating as
Here, the Court notes that Plaintiff's twenty-seven-page,
single-spaced handwritten response is difficult to decipher
as it is disorganized and filled with challenges to his
conditions of confinement during various time periods of his
incarceration at different prisons ([California State
Prison]-Corcoran, California Medical Facility, Deuel
Vocational Institution (“DVI”), SVSP, Kern Valley
State Prison) from 2010 through 2018, including his various
periods of hospitalization at medical facilities at these
prisons. See Id. Importantly, Plaintiff does not
contest that the dismissals cited in the Order to Show Cause
fall within the definition of section 1915(g). As mentioned,
he does appear to be arguing that he should be allowed to
proceed IFP because he is in “imminent danger, ”
see 28 U.S.C. § 1915(g) (providing for
“imminent danger” exception), insofar as he
alleges that he has suffered excessive force by prison
officials at DVI in June of 2010 and also at CSP-Corcoran in
October of 2012. None of these alleged incidents of excessive
force occurred at the prisons where Plaintiff was
incarcerated at the time he filed his complaint (California
Men's Colony) and his amended complaint (California State
Prison-Los Angeles County). From what the Court can decipher
from his response, the Court finds that Plaintiff has not
otherwise shown that he was in imminent danger of serious
physical injury or subject to an “ongoing danger”
at the time he filed either his complaint or amended
complaint. See Abdul-Akbar, 239 F.3d at 312.
Consequently, the Court finds that Plaintiff has not shown
cause why this case should not be dismissed and IFP should
not be denied under Section 1915(g).
In sum, Plaintiff was given the opportunity to be heard on
the question of whether the instant action is subject to
dismissal under section 1915(g), see Andrews, 398
F.3d at 1120-21, and his response to the Court's Order to
Show Cause fails to establish that section 1915(g) does not
Accordingly, this action is hereby DISMISSED without
prejudice to Plaintiff's refiling his claims in a new
case in which he pays the filing fee, and the amended
complaint, filed May 11, 2018 (dkt. 10), is hereby STRICKEN.
Plaintiff's requests to proceed IFP are DENIED. Dkt. 9,
Dkt. 24 at 2-3. Thus, in its March 15, 2019 Order, the Court
dismissed the action without prejudice to bringing in a paid
complaint and issued judgment. Dkts. 24, 25.
April 16, 2019, Plaintiff filed a notice to appeal. Dkt. 28.
April 29, 2019, Plaintiff filed a motion entitled,
“Motion to Vacate Judgment [Pursuant to] F.R.C.P.
section 59(e) and Request for Complaint and Record Excerpts
and Exhibits Filed Therewith for Appeal Briefing.” Dkt.
31. Because Plaintiff has already filed his appeal, his
request for copies of the complaint and exhibits is DENIED as
moot. Dkt. 31. Thus, the Court will address his motion to
vacate judgment, which is construed as a motion for
the Court's ruling has resulted in a final judgment or
order, as here, a motion for reconsideration may be based
either on Rule 59(e) (motion to alter or amend judgment) or
Rule 60(b) (motion for relief from judgment) of the Federal
Rules of Civil Procedure. Because Plaintiff's motion was
not filed within ten days of entry of judgment, as is
required for a Rule 59(e) motion, it will be treated as a
Rule 60(b) motion.
60(b) provides for reconsideration where one or more of the
following is shown: (1) mistake, inadvertence, surprise or
excusable neglect; (2) newly discovered evidence which by due
diligence could not have been discovered before the
Court's decision; (3) fraud by the adverse party; (4) the
judgment is void; (5) the judgment has been satisfied; (6)
any other reason justifying relief Fed.R.Civ.P. 60(b);
School Dist. 1J v. ACandS Inc., 5 F.3d 1255, 1263
(9th Cir. 1993). “Rule 60(b)  provides a mechanism
for parties to seek relief from a judgment when ‘it is
no longer equitable that the judgment should have prospective
application,' or when there is any other reason
justifying relief from judgment.” Jeff D. v.
Kempthorne, 365 F.3d 844, 853-54 (9th Cir. 2004)
(quoting Fed.R.Civ.P. 60(b)).
(6) requires a showing that the grounds justifying relief are
extraordinary. Mere dissatisfaction with the Court's
order, or belief that the Court is wrong in its decision, are
not grounds for relief under subparagraph (6) or any other
provision of Rule 60(b). “‘[T]he major grounds
that justify reconsideration involve an intervening change of
controlling law, the availability of new evidence, or the
need to correct a clear error or prevent manifest
injustice.'” Pyramid Lake Paiute Tribe of