(PC) Miller v. Kubicki ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ERNEST MILLER, No. 20-cv-00812-DAD-BAM (PC) 12 Plaintiff, 13 v. ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION 14 THEODORE KUBICKI, et al, (Doc. No. 17) 15 Defendants. 16 17 Plaintiff Ernest Miller is a state prisoner proceeding pro se in this civil rights action 18 pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge 19 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On June 25, 2020, plaintiff filed a motion to proceed in forma pauperis under 28 U.S.C. 21 § 1915.1 (Doc. No. 10.) On June 29, 2020, the assigned magistrate judge issued findings and 22 recommendations recommending that plaintiff’s application to proceed in forma pauperis be 23 denied pursuant to 28 U.S.C. § 1915(g) and that plaintiff be required to pay the $400.00 filing fee 24 in full to proceed with this action. (Doc. No. 12.) Plaintiff filed objections on July 9, 2020. 25 (Doc. No. 14.) On August 14, 2020, the undersigned adopted the findings and recommendations 26 in full and ordered plaintiff to pay the $400.00 filing fee in full within twenty-one (21) days. 27 1 Plaintiff later filed two additional motions to proceed in forma pauperis. (Doc. Nos. 13, 15.) 28 The undersigned denied those motions in the August 14, 2020 order. 1 (Doc. No. 16.) In that order, plaintiff was warned that failure to pay the filing fee within the 2 specified time would result in the dismissal of this action. (Id. at 2.) 3 On September 14, 2020, plaintiff filed objections to the August 14, 2020 order. (Doc. No. 4 17.) The court construes plaintiff’s filing as a motion for reconsideration of the undersigned’s 5 order adopting the magistrate judge’s findings and recommendations. (Doc. No. 22.) “A motion 6 for reconsideration should not be granted, absent highly unusual circumstances, unless the district 7 court is presented with newly discovered evidence, committed clear error, or if there is an 8 intervening change in the controlling law,” and it “may not be used to raise arguments or present 9 evidence for the first time when they could reasonably have been raised earlier in the litigation.” 10 Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) 11 (internal quotations marks and citations omitted) (emphasis in original). 12 Here, plaintiff has not demonstrated grounds upon which the court can grant his motion for 13 reconsideration. Plaintiff argues that he is under imminent danger and should be granted leave to 14 proceed in forma pauperis because some prison guards at High Desert State Prison paid inmates 15 and other prison guards to fatally injure him. (Doc. No. 17 at 1.) In support of his allegation in 16 this regard, plaintiff has attached to his objections a Rules Violation Report dated April 22, 2020, 17 which recounts a physical altercation between plaintiff and another inmate at Salinas Valley State 18 Prison. However, as correctly noted in the June 29, 2020 findings and recommendations, 19 although plaintiff was incarcerated at Salinas Valley State Prison at the time the complaint in this 20 case was filed, the complaint alleges claims based on events that allegedly occurred while 21 plaintiff was incarcerated at North Kern State Prison. (Doc. No. 12 at 2.) Although plaintiff 22 asserts that the exhibits attached to his objections demonstrate that he is now under imminent 23 danger of serious physical injury, the altercation discussed in his objections is completely 24 unrelated to the claims presented by plaintiff in this action. See Chappell v. Fleming, No. 2:12- 25 cv-0234 MCE AC, 2013 WL 2156575, at *6 (E.D. Cal. May 17, 2013) (declining to find 26 imminent danger because “Plaintiff’s legal claims, as raised in the complaint, d[id] not establish a 27 nexus between the unlawful conduct and the perceived threat to plaintiff’s safety”),report and 28 ///// 1 | recommendation adopted, No. 2:12-cv-0234 MCE AC, 2013 WL 3872794 (E.D. Cal. July 25, 2 || 2013). 3 The time period provided for plaintiff to pay the required filing fee to pursue this action 4 | has expired, and plaintiff has not paid the filing fee. However, plaintiff's objections are dated 5 || September 2, 2020, indicating that they may have been mailed within the time period for paying 6 || the filing fee. In light of plaintiff's pro se status and current imprisonment, the court will grant 7 || plaintiff an additional twenty-one (21) days to pay the required filing fee. 8 Accordingly: 9 1. Plaintiff's filing (Doc. No. 17), deemed to be a motion for reconsideration, is 10 denied; and 11 2. Within twenty-one (21) days following the date of service of this order, plaintiff 12 shall pay the $400.00 filing fee in full to proceed with this action. If plaintiff fails 13 to pay the filing fee within the specified time, this action will be dismissed without 14 prejudice. 15 | IT IS SO ORDERED. 5 = | Dated: _December 29, 2020 □□ 1 Yoo 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28