(PC) Ruiz v. Johnston ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROGELIO MAY RUIZ, No. 2:19-cv-2423-WBS-EFB P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 S. JOHNSTON, et al., 15 Defendants. 16 17 Plaintiff filed this action on December 3, 2019 (ECF No. 1) and simultaneously moved to 18 proceed in forma pauperis (ECF No. 2). On April 8, 2020, the court determined that plaintiff was 19 a “three-striker” within the meaning of 28 U.S.C. § 1915(g). ECF No. 8. It also found that he did 20 not qualify for the imminent danger exception. Id. at 2. The court’s recommended that plaintiff 21 be directed to pay the filing fee within fourteen days of any order adopting its recommendations. 22 Id. The district judge adopted the court’s recommendations on June 17, 2020. ECF No. 12. 23 Plaintiff did not pay the filing fee within the allotted time and, on July 7, 2020, the district judge 24 entered an order dismissing this action. ECF No. 14. Now, plaintiff has filed a motion for 25 reconsideration, appointment of counsel, and for reassignment of this case. ECF No. 16. 26 ///// 27 ///// 28 ///// 1 Legal Standards 2 As an initial matter, a grant of a motion to amend or alter judgment under Rule 59(e) is an 3 “extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial 4 resources.” See Kona Enters. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (quoting 12 5 James Wm. Moore et al., Moore’s Federal Practice § 59.30[4] (3d ed. 2000)). A motion to 6 amend or alter judgment should be granted only where a court “‘is presented with newly 7 discovered evidence, committed clear error, or if there is an intervening change in the controlling 8 law.’” McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en banc) (quoting 389 9 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)). 10 Analysis 11 Nothing in the current motion meets the requirements for granting a motion to amend or 12 alter judgment. Plaintiff has failed to point to newly discovered evidence or an intervening 13 change in controlling law. He appears to argue that the dismissal of his case was error and 14 contends that he is, in fact, indigent. ECF No. 16 at 1. The court’s denial of his IFP application, 15 however, was based on his status as a “three-striker” – not his ability to pay. And he has offered 16 no cogent argument that he is not a “three-striker.” Thus, it is recommended that his motion to 17 alter judgment be denied. 18 Plaintiff also contends that counsel should be appointed on his behalf and that the case 19 should be assigned to a different magistrate judge because the undersigned is “not competent.” 20 Id. Given that this case has been dismissed and alteration of that judgment should be denied, the 21 requests for appointment of counsel and reassignment of the case are denied. 22 Conclusion 23 Based on the foregoing, it is ORDERED that the requests for appointment of counsel and 24 reassignment of the case contained in plaintiff’s motion (ECF No. 16) are DENIED. 25 Further, it is RECOMMENDED that the request to alter or amend judgment contained in 26 plaintiff’s motion (ECF No. 16) be DENIED. 27 These findings and recommendations are submitted to the United States District Judge 28 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days wOASe 2 LUV VETO VY RYE DO MVMVUPEOCTIL th PICU Vere FP OAyt VI 1 | after being served with these findings and recommendations, any party may file written 2 || objections with the court and serve a copy on all parties. Such a document should be captioned 3 || “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 4 | within the specified time may waive the right to appeal the District Court’s order. Turner v. 5 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 6 || Dated: September 28, 2020. 7 Dating : heh bie g EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28