(PC) George v. Sullivan ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 JOSEPH GEORGE, No. 1:20-cv-00659-NONE-SKO (PC) 11 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO ALTER OR AMEND JUDGMENT 12 v. (Doc. No. 15) 13 W. SULLIVAN, et al., 14 Defendants. 15 16 Plaintiff Joseph George is a state prisoner appearing pro se in this civil rights action under 17 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 18 U.S.C. § 636(b)(1)(B) and Local Rule 302. 19 On June 3, 2020, the court adopted findings and recommendations issued by the assigned 20 magistrate judge (Doc. No. 10), denying plaintiff’s motion to proceed in forma pauperis (Doc. 21 No. 2) and ordering him to pay the filing fee in full within 30 days. (Doc. No. 13.) 22 On July 9, 2020, plaintiff filed a motion to alter or amend the judgment pursuant to Rule 23 59(e) of the Federal Rules of Civil Procedure. (Doc. No. 15.) Plaintiff argues that (1) the court 24 erroneously found that he accumulated four “strike” dismissals pursuant to 28 U.S.C. § 1915(g), 25 (2) he qualifies for the imminent-danger exception to the three-strikes bar, and (3) the three- 26 strikes bar is unconstitutional. (Id. at 2-6.) 27 “In general, there are four basic grounds upon which a Rule 59(e) motion may be granted: (1) if such motion is necessary to correct manifest errors of law or fact upon which the judgment 1 rests; (2) if such motion is necessary to present newly discovered or previously unavailable 2 evidence; (3) if such motion is necessary to prevent manifest injustice; or (4) if the amendment is 3 justified by an intervening change in controlling law.” Allstate Ins. Co. v. Herron, 634 F.3d 1101, 4 1111 (9th Cir. 2011). In addition, under Rule 60, the court may relieve a party from a judgement 5 or order “for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) 6 newly discovered evidence . . . ; (3) fraud . . . , misrepresentation, or misconduct by an opposing 7 party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; . . . or 8 (6) any other reason that justifies relief.” Fed. R. Civ. P. 60(b). Lastly, pursuant to Local Rules, a 9 party seeking reconsideration of a court order on a motion must show “what new or different facts 10 or circumstances are claimed to exist which did not exist or were not shown upon such prior 11 motion, or what other grounds exist for the motion.” Local Rule 230(j). 12 Plaintiff does not provide justification for relief based on any of the above grounds. 13 Plaintiff makes the same arguments in his motion that he made in his objections to the magistrate 14 judge’s findings and recommendations. (Compare Doc. No. 15 with Doc. No. 12.) He does not 15 provide any new facts, evidence, or circumstances that were not presented in his objections or not 16 already considered by the court. 17 First, the court already discussed the reasons why the four dismissals cited by the 18 magistrate judge are properly counted as strikes. (Doc. No. 13 at 2-3.) The court found that three 19 cases and one appeal were dismissed because they were frivolous or malicious or failed to state a 20 claim on which relief can be granted. (Id.) Plaintiff does not appear to challenge the fact that the 21 cases and appeal were dismissed on these grounds per se. Rather, he challenges the dismissals 22 themselves, or he argues that the court provided inadequate analyses of the underlying lawsuits. 23 (See Doc. No. 15 at 2-4.) 24 With respect to George v. Schultz, et al., No. 4:05-cv-01070-CW (N.D. Cal.), plaintiff 25 argues that Judge “Wilkens erred . . . by dismissing the case.” (Doc. No. 15 at 3.) Whether the 26 district court erroneously dismissed the action is irrelevant to whether the action was, in fact, 27 dismissed for failure to state a claim. Cf. Coleman v. Tollefson, ___U.S.___, 135 S. Ct. 1759, 1 dismissal is the subject of an appeal,” and even if “[a]n erroneous . . . dismissal might wrongly 2 deprive . . . in forma pauperis status with respect to lawsuits filed after a dismissal but before its 3 reversal on appeal”). If plaintiff wishes to challenge the dismissal itself, the proper place is in a 4 direct appeal of the dismissal, not in this action. 5 With respect to George v. Doe, No. 4:07-cv-03697-CW (N.D. Cal.), plaintiff argues that, 6 “[b]ecause the Court did not analyze[] the lawsuit . . . it should not be counted as a strike.” (Doc. 7 No. 15 at 4.) However, the court did analyze the lawsuit and found that the district court in that 8 case dismissed the action as duplicative and abusive under 28 U.S.C. § 1915A. (Doc. No. 13 at 9 2.) Plaintiff does not challenge the substance of the court’s finding that the dismissal is a strike. 10 Regarding George v. United States, et al., No. 3:19-cv-01544-AJB-BLM (S.D. Cal.), and 11 Joseph George v. USA, No. 19-564491 (9th Cir.), plaintiff states that “the Court has not analyzed 12 the lawsuit or appeal as required” and “both these cases should not count as strikes.” (Doc. No. 13 15 at 4.) Plaintiff provides no support for these conclusory assertions, and he does not challenge 14 the substance of the court’s finding that the district court and the Ninth Circuit Court of Appeals 15 explicitly dismissed the case and appeal as frivolous, respectively, which qualifies both of the 16 dismissals as strikes. (Doc. No. 13 at 2-3.) 17 Plaintiff also argues that “the court has not provided any documentation to support the 18 findings” in the dismissals. (Id. at 2, 4.) Plaintiff provides no authority that requires the court to 19 provide such documentation. The magistrate judge took judicial notice of the court records in the 20 relevant cases and appeal (Doc. No. 10 at 2), as the court is authorized to do. See United States v. 21 Wilson, 631 F.2d 118, 119 (9th Cir. 1980). This is sufficient in this case. See Andrews v. King, 22 398 F.3d 1113, 1120 (9th Cir. 2005) (“district court docket records may be sufficient to show that 23 a prior dismissal satisfies . . . criteria under § 1915(g) and therefore counts as a strike”). 24 Second, the court already considered and rejected plaintiff’s argument that his allegations 25 satisfy the imminent-danger exception under 28 U.S.C. § 1915(g). (Doc. No. 13 at 3.) The 26 allegations in plaintiff’s complaint concern incidents that allegedly occurred at California 27 Correctional Institution. (See Doc. No. 1 at 1.) Plaintiff is now incarcerated at Pelican Bay State wOAOe UVM INI SINNEY MUO IO Ne OY IT 1 | “suggest he was in imminent danger at the time he filed this action or . . . that he presently faces 2 | imminent danger at Pelican Bay where he is currently imprisoned.” (Doc. No. 13 at 3.) 3 In his motion, plaintiff contends that there is “an ongoing conspiracy by prison gangs and 4 | prison guards,” and this is sufficient to satisfy the imminent-danger exception. (Doc. No. 15 at 5 | 5.) However, plaintiff already raised this contention in his objections to the findings and 6 || recommendations. (Doc. No. 12 at 4.) Plaintiff again provides no facts to support this allegation, 7 | and he provides no facts to show that such “conspiracy” has followed him to Pelican Bay and 8 || thereby placed him in imminent danger. Plaintiff cites the decision in Williams v. Paramo, 775 9 | F.3d 1182 (9th Cir. 2015), to support his argument that his allegations are adequate to support a 10 | finding that the exception applies here. (Doc. No. 15 at 5.) But, in Williams, the plaintiff alleged 11 | “that she ‘is receiving constant, daily threats of irreparable harm, injury and death due to the 12 | prison officials and defendants revealing to other inmates (where the appellant is incarcerated) 13 | that the appellant is, allegedly, a convicted sex offender and child molester.’” 775 F.3d at 1190. 14 | Here, although plaintiff alleges that he has experienced “harassment and attacks at several 15 || prisons,” he does not allege that he has experienced such at Pelican Bay, where he is currently 16 || incarcerated. (See Doc. No. 1 at 3.) In fact, the claims in plaintiff's complaint do not concern 17 | any incidents at Pelican Bay. (See id. at 1-7.) 18 Third, the court already considered plaintiff's contention that the three-strikes provision is 19 | unconstitutional. (Doc. No. 13 at 2.) According to the Ninth Circuit, the three-strikes bar under 20 | section “1915(g) is not facially unconstitutional.” Andrews, 398 F.3d at 1123 (citation omitted). 21 | Plaintiff provides no reason why the provision is unconstitutional as applied to him. 22 Based on the foregoing, plaintiff's motion to alter or amend the court’s order denying his 23 | application to proceed in forma pauperis (Doc. No. 15) is denied. 24 | IT IS SO ORDERED. me □ 25 Dated: _ July 16, 2020 i sl, A i a 26 UNITED STATES DISTRICT JUDGE 27 28