(PC) Dustin v. Kern Valley State Prison Personnel ( 2020 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 DALE OWEN DUSTIN, Case No. 1:19-cv-00989-LJO-SAB (PC) 9 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION 10 v. ORDER DISMISSING ACTION WITHOUT 11 KERN VALLEY STATE PRISON PREJUDICE FOR FAILURE TO PAY FILING PERSONNEL, FEE AND FAILURE TO OBEY COURT 12 ORDER Defendant. 13 (ECF Nos. 18, 19, 20) 14 15 Plaintiff Dale Owen Dustin is a state prisoner proceeding pro se in this civil rights action 16 pursuant to 42 U.S.C. § 1983. 17 On November 6, 2019, the assigned Magistrate Judge issued findings and 18 recommendations that Plaintiff’s application to proceed in forma pauperis be denied pursuant to 19 28 U.S.C. § 1915(g) and that Plaintiff be required to pay the $400.00 filing fee in full in order to 20 proceed with this action. (ECF No. 16.) The findings and recommendations were served on 21 Plaintiff and contained notice that any objections thereto were to be filed within thirty (30) days 22 after service of the findings and recommendations. (Id.) Plaintiff timely filed objections on 23 November 25, 2019. (ECF No. 17.) 24 On December 1, 2019, the undersigned issued an order adopting the November 6, 2019 25 findings and recommendations in full, denying Plaintiff’s application to proceed in forma 26 pauperis, and ordering Plaintiff to pay the $400.00 filing fee in full within twenty-one (21) days 27 from the date of service of the order. (ECF No. 18.) In the December 1, 2019, the undersigned 28 warned Plaintiff that, if he failed to pay the filing fee within the specified time, this action would 1 be dismissed. (Id. at 3.) 2 However, on December 27, 2019, rather than pay the $400.00 filing fee in full, Plaintiff 3 filed “objections” to the Court’s December 1, 2019 order. (ECF No. 19.) Additionally, on 4 December 30, 2019, Plaintiff filed an “addendum to opposition” to the Court’s December 1, 2019 5 order. (ECF No. 20.) The Court construes Plaintiff’s December 27, 2019 “objections” and 6 December 30, 2019 “addendum to opposition” as a motion for reconsideration of the Court’s 7 December 1, 2019 order. 8 Federal Rule of Civil Procedure 60(b)(6) permits the Court to relieve a party from an 9 order for any reason that justifies relief. Rule 60(b)(6) “is to be used sparingly as an equitable 10 remedy to prevent manifest injustice and is to be utilized only where extraordinary 11 circumstances” exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotation 12 marks and citation omitted). “A party moving for relief under Rule 60(b)(6) must demonstrate 13 both injury and circumstances beyond [their] control[.]” Id. (internal quotation marks and 14 citation omitted). Additionally, Local Rule 230(j) requires that, when a party makes a motion for 15 reconsideration, the party must show “what new or different facts or circumstances are claimed to 16 exist or were not shown upon such prior motion, or what other grounds exist for the motion” and 17 “why the facts and circumstances were not shown at the time of the prior motion.” 18 “A motion for reconsideration should not be granted, absent highly unusual 19 circumstances, unless the district court is presented with newly discovered evidence, committed 20 clear error, or if there is an intervening change in the controlling law.” Marlyn Nutraceuticals, 21 Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotation marks 22 and citation omitted). Therefore, “[a] party seeking reconsideration must show more than a 23 disagreement with the Court’s decision, and recapitulation of the cases and arguments considered 24 by the [C]ourt before rendering its original decision fails to carry the moving party’s burden.” 25 United States v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001) (internal 26 quotation marks and citation omitted). 27 Here, Plaintiff disputes the Court’s determination that he does not meet the imminent 28 danger exception to the three strikes rule and contends that he is in ongoing danger of serious 1 physical injury. (ECF Nos. 19, 20.) However, Plaintiff has not presented the Court with any 2 newly discovered evidence, demonstrated that the Court committed clear error, or established that 3 there has been an intervening change in the controlling law. Marlyn, 571 F.3d at 880. Instead, 4 Plaintiff’s motion merely reiterates the same arguments previously presented to, and considered 5 by, the Court. Plaintiff’s disagreement with the Court’s decision is not grounds for 6 reconsideration. Therefore, Plaintiff’s motion for reconsideration of the Court’s December 1, 7 2019 order is denied. 8 As noted above, in the Court’s December 1, 2019 order, Plaintiff was ordered to pay the 9 $400.00 filing fee in full within twenty-one (21) days after service of the order. (ECF No. 18, at 10 3.) Additionally, Plaintiff was warned in the December 1, 2019 order that failure to pay the filing 11 fee in full would cause this action to be dismissed. (Id.) 12 However, the twenty-one (21) day period has now expired, and Plaintiff has failed to pay 13 the $400.00 filing fee in full. Further, Plaintiff has stated that he does not have $400.00 and 14 “could never come up with it in here.” (ECF No. 19, at 1.) As such, this case cannot proceed. 15 Therefore, this matter will be dismissed. 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. Plaintiff’s motion for reconsideration, (ECF Nos. 19, 20), is DENIED; 18 2. This action is DISMISSED, without prejudice, based on Plaintiff’s failure to 19 comply with the Court’s December 1, 2019 order, (ECF No. 18), and his failure to 20 pay the $400.00 filing fee in full; and 21 3. The Clerk of the Court is directed to terminate all pending deadlines and close this 22 case. 23 IT IS SO ORDERED. 24 25 Dated: January 4, 2020 /s/ Lawrence J. O’Neill _____ UNITED STATES CHIEF DISTRICT JUDGE 26 27 28