(PC) Ruiz v. Shearer ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ROGELIO MAY RUIZ, No. 2:20-cv-02078-TLN-DB 11 Plaintiff, 12 v. ORDER 13 A. SHEARER, et al., 14 Defendants. 15 16 Plaintiff Rogelio Ruiz (“Plaintiff”) is a state prisoner proceeding pro se with a civil rights 17 action under 42 U.S.C. § 1983. On January 15, 2021, the Court issued an Order in which it held 18 that Plaintiff had accrued three strikes under 28 U.S.C. § 1915(g) and denied his Motion to 19 Proceed in Forma Pauperis. (See ECF Nos. 10, 13.) In addition, the Court found Plaintiff did 20 not meet the exception to the three strikes rule by showing he was in imminent danger of serious 21 physical injury at the time his Complaint was filed. (See id.); see also Williams v. Paramo, 775 22 F.3d 1182, 1189 (9th Cir. 2015). 23 On January 25, 2021, Plaintiff filed a motion titled “Motion: Request for Interpreter 24 Counsel and Request Motion in Forma Pauperis to be Granted,” in which he argues that he should 25 qualify for the imminent danger exception to the three strikes rule and requests the Court appoint 26 him a Spanish-speaking attorney. (ECF No. 14.) On January 28, 2021, Plaintiff filed a second 27 motion, titled “Motion: Request Appointment of Attorney Interpreter and His Motion Request 28 (IFP) to be granted,” which further details Plaintiff’s objections to the finding that he qualifies as 1 a three strike litigant and appears to request the same relief as his previous filing. (See ECF No. 2 15.) Accordingly, the Court will address both filings together. On February 1, 2021, the 3 magistrate judge issued an order denying Plaintiff’s requests to appoint counsel. (ECF No. 16.) 4 With respect to Plaintiff’s in forma pauperis arguments, the Court construes Plaintiff’s filings as a 5 Motion for Reconsideration of its January 15, 2021 Order pursuant to Federal Rule of Civil 6 Procedure (“Rule”) 59(e). See Fed. R. Civ. P. 59(e). 7 I. STANDARD OF LAW 8 Rule 59(e) does not list specific grounds for a motion to amend or alter, therefore the 9 district court enjoys considerable discretion in granting or denying the motion. Allstate Ins. Co. v. 10 Herron, 634 F.3d 1101, 1111 (9th Cir. 2011) (citing McDowell v. Calderon, 197 F.3d 1253, 1255 11 n.1 (9th Cir. 1999)). Nevertheless, a motion for reconsideration under Rule 59(e) “should not be 12 granted, absent highly unusual circumstances, unless the district court is presented with newly 13 discovered evidence, committed clear error, or if there is an intervening change in the controlling 14 law.” McDowell, 197 F.3d at 1255 (emphasis in original). Indeed, “reconsideration of a 15 judgment after its entry is an extraordinary remedy which should be used sparingly.” Id. at 1255 16 n.1. Further, “[a] motion for reconsideration may not be used to raise arguments or present 17 evidence for the first time when they could reasonably have been raised earlier in the litigation.” 18 Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co. (Marlyn), 571 F.3d 873, 880 (9th 19 Cir. 2009) (emphasis in original). 20 “In general, there are four basic grounds upon which a Rule 59(e) motion may be granted: 21 (1) if such motion is necessary to correct manifest errors of law or fact upon which the judgment 22 rests; (2) if such motion is necessary to present newly discovered or previously unavailable 23 evidence; (3) if such motion is necessary to prevent manifest injustice; or (4) if the amendment is 24 justified by an intervening change in controlling law.” Allstate Ins. Co., 634 F.3d at 1111. 25 II. ANALYSIS 26 To the extent Plaintiff seeks reconsideration of the January 15, 2021 Order’s finding that 27 he had accrued three strikes under 28 U.S.C. § 1915(g) (see ECF No. 14 at 2; ECF No. 15 at 1–2), 28 Plaintiff fails to establish he is entitled to relief under Rule 59(e). Plaintiff’s arguments do not 1 constitute “newly discovered or previously unavailable evidence” or “an intervening change in 2 controlling law,” but instead are arguments Plaintiff previously made in opposition to the three 3 strikes finding. (See ECF No. 11 at 2); Allstate Ins. Co., 634 F.3d at 1111; see also Marlyn, 571 4 F.3d at 880. As such, Plaintiff fails to demonstrate reconsideration is warranted with respect to 5 his three-strikes litigant status. Allstate Ins. Co., 634 F.3d at 1111. 6 To the extent Plaintiff provides new facts and circumstances in support of his request for 7 reconsideration with respect to the imminent danger exception (see ECF No. 14 at 2), Plaintiff’s 8 arguments nevertheless fail to establish a different finding is appropriate. The availability of the 9 imminent danger exception “turns on the conditions a prisoner faced at the time the complaint 10 was filed, not at some earlier or later time.” Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 11 2007). Further, “[i]mminent danger of serious physical injury must be a real, present threat, not 12 merely speculative or hypothetical.” Blackman v. Mjening, No. 1:16-cv-01421-LJO-GSA-PC, 13 2016 WL 5815905, at *1 (E.D. Cal. Oct. 4, 2016). To meet his burden under § 1915(g), Plaintiff 14 must provide “specific fact allegations of ongoing serious physical injury, or a pattern of 15 misconduct evidencing the likelihood of imminent serious physical injury.” Martin v. Shelton, 16 319 F.3d 1048, 1050 (8th Cir. 2003). “[V]ague and utterly conclusory assertions” of imminent 17 danger are insufficient. White v. Colorado, 157 F.3d 1226, 1231–32 (10th Cir. 1998); see also 18 Martin, 319 F.3d at 1050 (“[C]onclusory assertions” are “insufficient to invoke the exception to § 19 1915(g) . . . .”). Thus, the “imminent danger” exception is available “for genuine emergencies,” 20 where “time is pressing” and “a threat ... is real and proximate.” Lewis v. Sullivan, 279 F.3d 526, 21 531 (7th Cir. 2002). 22 Here, Plaintiff states only that he faces a “threat of death or injury due to enemies or other 23 placement concerns.” (ECF No. 14 at 2.) This statement is too vague to support the imminent 24 danger exception. White, 157 F.3d at 1231–32; Martin, 319 F.3d at 1050. Therefore, the Court 25 finds Plaintiff fails to show he was in “real and proximate” danger when he filed the Complaint in 26 October 2020. Andrews, 493 F.3d at 1053. Accordingly, Plaintiff fails to demonstrate that the 27 “extraordinary remedy” he seeks is warranted with respect to the imminent danger exception. 28 Allstate Ins. Co., 634 F.3d at 1111. 1 III. © CONCLUSION 2 For the foregoing reasons, IT IS HEREBY ORDERED that: 3 1. Plaintiff's Motion for Reconsideration (ECF Nos. 14, 15) of the Court’s January 15, 4 | 2021 Order is DENIED. 5 2. Plaintiff will be provided additional time to pay the $400 filing fee. However, if 6 | Plaintiff does not pay the fee within fourteen (14) days of the electronic filing date of this Order, 7 | this action will be dismissed. 8 IT IS SO ORDERED. 9 | DATED: February 10, 2021 10 { /) “ □□ Vln 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28