United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR
RECONSIDERATION ORDER DISMISSING ACTION WITHOUT PREJUDICE FOR
FAILURE TO PAY FILING FEE AND FAILURE TO OBEY COURT ORDER
(ECF NOS. 18, 19, 20)
Lawrence J. O'Neill UNITED STATES CHIEF DISTRICT JUDGE
Dale Owen Dustin is a state prisoner proceeding pro
se in this civil rights action pursuant to 42 U.S.C.
November 6, 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. 16.) 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 November
25, 2019. (ECF No. 17.)
December 1, 2019, the undersigned issued an order adopting
the November 6, 2019 findings and recommendations in full,
denying Plaintiff's application to proceed in forma
pauperis, and ordering Plaintiff to pay the $400.00
filing fee in full within twenty-one (21) days from the date
of service of the order. (ECF No. 18.) In the December 1,
2019, the undersigned warned Plaintiff that, if he failed to
pay the filing fee within the specified time, this action
would be dismissed. (Id. at 3.)
on December 27, 2019, rather than pay the $400.00 filing fee
in full, Plaintiff filed “objections” to the
Court's December 1, 2019 order. (ECF No. 19.)
Additionally, on December 30, 2019, Plaintiff filed an
“addendum to opposition” to the Court's
December 1, 2019 order. (ECF No. 20.) The Court construes
Plaintiff's December 27, 2019 “objections”
and December 30, 2019 “addendum to opposition” as
a motion for reconsideration of the Court's December 1,
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 he does
not meet the imminent danger exception to the three strikes
rule and contends that he is in ongoing danger of serious
physical injury. (ECF Nos. 19, 20.) However, Plaintiff has
not presented the Court with any newly discovered evidence,
demonstrated that the Court committed clear error, or
established that there has been an intervening change in the
controlling law. Marlyn, 571 F.3d at 880. Instead,
Plaintiff's motion merely reiterates the same arguments
previously presented to, and considered by, the Court.
Plaintiff's disagreement with the Court's decision is
not grounds for reconsideration. Therefore, Plaintiff's
motion for reconsideration of the Court's December 1,
2019 order is denied.
noted above, in the Court's December 1, 2019 order,
Plaintiff was ordered to pay the $400.00 filing fee in full
within twenty-one (21) days after service of the order. (ECF
No. 18, at 3.) Additionally, Plaintiff was warned in the
December 1, 2019 order that failure to pay the filing fee in
full would cause this action to be dismissed. (Id.)
the twenty-one (21) day period has now expired, and Plaintiff
has failed to pay the $400.00 filing fee in full. Further,
Plaintiff has stated that he does not have $400.00 and
“could never come up with it in here.” (ECF No.
19, at 1.) As such, this case cannot proceed. Therefore, this
matter will be dismissed.
IT IS HEREBY ORDERED that:
Plaintiff's motion for reconsideration, (ECF Nos. 19,
20), is DENIED;
action is DISMISSED, without prejudice, based on
Plaintiff's failure to comply with the Court's
December 1, 2019 order, (ECF No. 18), and his ...