(PC) Joshua Bland v. Gamboa ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSHUA DAVIS BLAND, No. 1:20-cv-00794-NONE-HBK 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION AND MOTION 13 v. TO SUPPRESS 14 C. GAMBOA, ET. AL., (Doc. No. 11) 15 Defendants. 16 17 Plaintiff Joshua Davis Bland is a state prisoner proceeding pro se and in forma pauperis in 18 this civil rights action under 42 U.S.C. § 1983. This matter was referred to a United States 19 Magistrate Judge under 28 U.S.C. § 636(B)(1)(B) and Eastern District of California Local Rule 20 302. 21 On June 24, 2020, the previously assigned magistrate judge issued findings and 22 recommendations recommending that plaintiff’s motion to proceed in forma pauperis be denied 23 under 28 U.S.C. § 1915(g) and that he be directed the pay the full filing fee. (Doc. No. 4). 24 Plaintiff filed objections to those findings and recommendations in July 2020. (Doc. No. 5). The 25 district court adopted the findings and recommendations in full on October 19, 2020, ordered 26 plaintiff to pay the filing fee within twenty-one days of the order, and warned him that his failure 27 to timely pay the filing fee would result in dismissal of the action. (Doc. No. 6 at 2). 28 ///// 1 On August 2, 2021, plaintiff moved for reconsideration of the court’s October 19, 20201 2 order. (Doc. No. 11). In sum, plaintiff argues that the Three Strikes Rule is unconstitutional and 3 impedes his right to access to the courts under the First Amendment to the United States 4 Constitution. (Id. at 1–3). Plaintiff also requests that the court “suppress” the Three Strikes Rule 5 because it was enacted without due process. (Id. at 3). 6 Federal Rule of Civil Procedure 60(b) governs the reconsideration orders of the district 7 court. Rule 60(b) permits a district court to relieve a party from an order or judgment on grounds 8 of: “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence . . .; 9 (3) fraud . . . of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied . . . 10 or (6) any other reason justifying relief from the operation of the judgment.” Fed. R. Civ. P. 11 60(b). A motion under Rule 60(b) must be made within a reasonable time, in any event “not 12 more than one year after the judgment, order, or proceeding was entered or taken.” Id. 13 Moreover, when filing a motion for reconsideration, Local Rule 230(j) requires a party to 14 show the “new or different facts or circumstances claimed to exist which did not exist or were not 15 shown upon such prior motion, or what other grounds exist for the motion.” To succeed on a 16 motion for reconsideration, a party must set forth facts or law of a strongly convincing nature to 17 induce the court to reverse its prior decision. See, e.g., Kern-Tulare Water Dist. v. City of 18 Bakersfield, 634 F. Supp. 656, 665 (E.D. Cal. 1986), aff’d in part and rev’d in part on other 19 grounds, 828 F.2d 514 (9th Cir. 1987). Reconsideration of a prior order is an extraordinary 20 remedy “to be used sparingly in the interests of finality and conservation of judicial resources.” 21 Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (citation omitted); see 22 also Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (addressing reconsideration under Rule 23 60(b)). 24 Here, plaintiff’s motion for reconsideration was filed approximately ten months after the 25 issuance of the order he now challenges. In the motion for reconsideration, plaintiff raises 26 1 It appears Plaintiff motion for reconsideration contains a typographical error regarding the date of the 27 order he wishes to challenge. (Doc. No. 11 at 1). Plaintiff appears to inadvertently refer to the order as dated October 9, 2020 instead of the correct date of October 19, 2020. (Id.). The undersigned reviewed 28 the docket and confirmed there is no October 9, 2020 order. 1 | arguments similar to those he advanced in his objections to earlier findings and recommendations. 2 | (Compare Doc. No. 5 at 1-2 with Doc. No. 11 at 1-3). Among other things, plaintiff argued in his 3 | objections the Prison Litigation Reform Act infringes on his First Amended rights. (Doc. No. 5 at 4 | 2). The undersigned previously reviewed those objections and nevertheless adopted the findings 5 | and recommendations in full. Plaintiff's pending motion does not provide any new or different 6 | facts, circumstances, or law to justify the court’s reconsideration of its prior order. Accordingly, 7 | plaintiffs Rule 60(b) motion for reconsideration and motion to suppress (Doc. No. 11) are hereby 8 | denied in their entirety. 9 | ITIS ORDERED. a 8 Dated: _ November 17, 2021 Ya AL oa 11 UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28