(PC) Petillo v. Jasso ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ISAIAH J. PETILLO, Case No. 1:19-cv-00908-LJO-SAB (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S THIRD APPLICATION TO PROCEED IN FORMA 13 v. PAUPERIS, CONSTRUED AS A MOTION FOR RECONSIDERATION 14 REYNALDO JASSO, et al., (ECF No. 11) 15 Defendants. TWENTY-ONE (21) DAY DEADLINE 16 17 I. Introduction 18 Plaintiff Isaiah J. Petillo is a state prisoner proceeding pro se in this civil rights action 19 pursuant to 42 U.S.C. § 1983. 20 On July 3, 2019, Plaintiff filed a complaint and an application to proceed in forma 21 pauperis. (ECF Nos. 1, 2.) 22 On July 8, 2019, the assigned Magistrate Judge issued findings and recommendations that 23 Plaintiff’s application to proceed in forma pauperis be denied pursuant to 28 U.S.C. § 1915(g) 24 and that Plaintiff be required to pay the $400.00 filing fee in full in order to proceed with this 25 action. (ECF No. 5.) The findings and recommendations were served on Plaintiff and contained 26 notice that any objections thereto were to be filed within thirty (30) days after service of the 27 findings and recommendations. (Id.) 28 1 Also, on July 8, 2019, Plaintiff filed a second application to proceed in forma pauperis. 2 (ECF No. 6.) 3 On September 13, 2019, after Plaintiff failed to file objections to the findings and 4 recommendations, the undersigned issued an order adopting the July 8, 2019 findings and 5 recommendations in full and denied both of Plaintiff’s applications to proceed in forma pauperis 6 pursuant to 28 U.S.C. § 1915(g). (ECF No. 8.) The undersigned ordered Plaintiff to pay the 7 $400.00 filing fee in full within twenty-one days from the date of service of the order. (Id.) 8 On September 30, 2019, Plaintiff filed a motion for a 30-day extension of time to pay the 9 filing fee. (ECF No. 9.) On October 1, 2019, the Magistrate Judge granted Plaintiff an additional 10 30 days to pay the $400.00 filing fee in full. (ECF No. 10.) Therefore, Plaintiff was required to 11 pay the $400.00 filing fee in full on or before November 4, 2019. 12 However, on October 28, 2019, rather than pay the $400.00 filing fee in full, Plaintiff filed 13 a third application to proceed in forma pauperis. (ECF No. 11.) The Court interprets Plaintiff’s 14 motion as a motion for reconsideration of the Court’s September 13, 2019 order adopting the July 15 8, 2019 findings and recommendations, denying Plaintiff’s applications to proceed in forma 16 pauperis, and ordering Plaintiff to pay the $400.00 filing fee in full in order to proceed with this 17 action. 18 II. Motion for Reconsideration 19 Federal Rule of Civil Procedure 60(b)(6) permits the Court to relieve a party from an 20 order for any reason that justifies relief. Rule 60(b)(6) “is to be used sparingly as an equitable 21 remedy to prevent manifest injustice and is to be utilized only where extraordinary 22 circumstances” exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotation 23 marks and citation omitted). “A party moving for relief under Rule 60(b)(6) must demonstrate 24 both injury and circumstances beyond [their] control[.]” Id. (internal quotation marks and 25 citation omitted). Additionally, Local Rule 230(j) requires that, when a party makes a motion for 26 reconsideration, the party must show “what new or different facts or circumstances are claimed to 27 exist or were not shown upon such prior motion, or what other grounds exist for the motion” and 28 “why the facts and circumstances were not shown at the time of the prior motion.” 1 “A motion for reconsideration should not be granted, absent highly unusual 2 circumstances, unless the district court is presented with newly discovered evidence, committed 3 clear error, or if there is an intervening change in the controlling law.” Marlyn Nutraceuticals, 4 Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotation marks 5 and citation omitted). Therefore, “[a] party seeking reconsideration must show more than a 6 disagreement with the Court’s decision, and recapitulation of the cases and arguments considered 7 by the [C]ourt before rendering its original decision fails to carry the moving party’s burden.” 8 United States v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001) (internal 9 quotation marks and citation omitted). 10 Here, Plaintiff disputes the Court’s findings that he does not meet the imminent danger 11 exception to the three strikes rule. 28 U.S.C. § 1915(g). Specifically, Plaintiff argues that he is in 12 ongoing imminent danger of serious physical harm because Defendant Ochoa and other non-party 13 prison staff members harassed and/or retaliated against Plaintiff on several occasions in 14 September 2018, because non-party correctional officers threatened, harassed and/or retaliated 15 against Plaintiff in October 2019, and because he was physically attacked by his cellmate on or 16 about October 13, 2019.1 17 However, Plaintiff signed his complaint on June 14, 2019 and the complaint was filed 18 1 To the extent that Plaintiff’s motion also requests that the Court grant Plaintiff leave to file a 19 first amended complaint that would include retaliation and other claims against Captain Hernandez and Correctional Officer Castillo, two parties who are not currently named as 20 Defendants in this action, the Court denies Plaintiff’s request. 21 Federal Rule of Civil Procedure 20 permits multiple parties to be joined as defendants in a single action only if claims are asserted against them jointly or severally, or the claims asserted against 22 them “arise out of the same transaction, occurrence, or series of transactions or occurrences” and 23 “any question of fact or law common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(1). Here, since the proposed claims against Captain Hernandez and Correctional Officer 24 Castillo are not asserted jointly and severally against Defendants Jasso and Ochoa and do not arise out of the same transaction, occurrence, or series of transactions or occurrences as the claims 25 directed against Defendants Jasso and Ochoa, the proposed claims against Captain Hernandez and Correctional Officer Castillo are not related to the claims in Plaintiff’s complaint against 26 Defendants Jasso and Ochoa. “[U]nrelated claims that involve different defendants must be 27 brought in separate lawsuits.” Reed v. Hinshaw, No. 1:11-cv-00340-AWI-SAB (PC), 2013 WL 3198611, at *2 (E.D. Cal. Jun. 21, 2013) (citing George v. Smith, 507 F.3d 605, 607 (7th Cir. 28 2007). 1 with the Court on July 3, 2019. (ECF No. 1.) With regards to the events that Plaintiff alleges 2 occurred in September 2018, before Plaintiff’s complaint was filed, Plaintiff has failed to explain 3 why he did not allege these facts in his complaint or raise these facts in any written objections to 4 the July 8, 2019 findings and recommendations recommending that Plaintiff’s application to 5 proceed in forma pauperis be denied pursuant to 28 U.S.C. § 1915(g), as required by Local Rule 6 230(j). Further, since Plaintiff’s allegations regarding any harassment and/or retaliation in 7 September 2018 occurred approximately 8 months before Plaintiff filed his complaint, these 8 allegations fail to demonstrate that Plaintiff was in imminent danger of serious physical injury 9 when he filed his complaint on July 3, 2019. 10 With regards to the events that Plaintiff alleges occurred in October 2019, these events 11 occurred approximately three months after Plaintiff’s complaint was filed on July 3, 2019. 12 Because the events that occurred in October 2019 happened after the instant complaint was filed, 13 Plaintiff cannot base his claim of imminent danger on the October 2019 events. Rather, “the 14 availability of the [imminent danger] exception turns on the conditions a prisoner faced at the 15 time the complaint was filed, not at some earlier or later time.” Andrews v. Cervantes, 493 F.3d 16 1047, 1053 (9th Cir. 2007). Therefore, Plaintiff’s allegations about events that occurred in 17 October 2019 fail to demonstrate that Plaintiff was in imminent danger of serious physical injury 18 when he filed his complaint on July 3, 2019. 19 Consequently, Plaintiff’s motion for reconsideration is denied. 20 While Plaintiff’s motion for reconsideration was pending, the time allotted for Plaintiff to 21 pay the $400.00 filing fee in full expired. Therefore, the Court finds that the interest of justice 22 requires that Plaintiff be granted twenty-one (21) additional days from the date of service of this 23 order to pay the $400.00 filing fee in full in order to proceed with this action. 24 III. Order 25 Based on the foregoing, it is HEREBY ORDERED that: 26 1. Plaintiff’s third application to proceed in forma pauperis, construed as a motion 27 for reconsideration, (ECF No. 11), is DENIED; 28 /// 1 2. In the interest of justice, Plaintiff is granted twenty-one (21) days from the date of 2 service of this order to pay the $400.00 filing fee in full in order to proceed with 3 this action; and 4 3. Plaintiff is warned that if he fails to pay the filing fee within the specified time, 5 this action will be dismissed. 6 IT IS SO ORDERED. 7 8 Dated: November 14, 2019 /s/ Lawrence J. O’Neill _____ UNITED STATES CHIEF DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28