(PC) Cruz v. Pfeifer ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GUILLERMO TRUJILLO CRUZ, No. 1:20-cv-01492-DAD-EPG (PC) 12 Plaintiff, 13 v. ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION 14 C. PFEIFER, et al., (Doc. No. 7) 15 Defendants. 16 17 Plaintiff Guillermo Trujillo Cruz is a state prisoner proceeding pro se in this civil rights 18 action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate 19 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On October 22, 2020, the assigned magistrate judge issued findings and recommendations 21 recommending that plaintiff’s application to proceed in forma pauperis be denied pursuant to 28 22 U.S.C. § 1915(g) and that plaintiff be required to pay the $400.00 filing fee in full to proceed with 23 this action.1 (Doc. No. 2.) Plaintiff filed objections on November 12, 2020. (Doc. No. 4.) On 24 December 10, 2020, the undersigned adopted the findings and recommendations in full and 25 ///// 26 ///// 27 1 On December 1, 2020, the civil case filing fee in the Eastern District of California increased to 28 $402.00. 1 ordered plaintiff to pay the filing fee within thirty (30) days.2 (Doc. No. 5.) In that order, 2 plaintiff was warned that his failure to pay the filing fee within the specified time would result in 3 the dismissal of this action. (Id. at 2.) 4 On December 29, 2020, plaintiff filed a motion for clarification, which the court construes 5 as a motion for reconsideration of the undersigned’s order adopting the magistrate judge’s 6 findings and recommendations. (Doc. No. 7.) 7 Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the 8 district court. Rule 60(b) permits a district court to relieve a party from a final order or judgment 9 on grounds of: “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered 10 evidence . . .; (3) fraud . . . of an adverse party; (4) the judgment is void; (5) the judgment has 11 been satisfied . . . or (6) any other reason justifying relief from the operation of the judgment.” 12 Fed. R. Civ. P. 60(b). A motion under Rule 60(b) must be made within a reasonable time, in any 13 event “not more than one year after the judgment, order, or proceeding was entered or taken.” Id. 14 Reconsideration of a prior order is an extraordinary remedy “to be used sparingly in the 15 interests of finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of 16 Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (citation omitted); see also Harvest v. Castro, 531 F.3d 17 737, 749 (9th Cir. 2008) (addressing reconsideration under Rule 60(b)). In seeking 18 reconsideration under Rule 60, the moving party “must demonstrate both injury and 19 circumstances beyond his control.” Harvest, 531 F.3d at 749 (internal quotation marks and 20 citation omitted). 21 “A motion for reconsideration should not be granted, absent highly unusual 22 circumstances, unless the district court is presented with newly discovered evidence, committed 23 clear error, or if there is an intervening change in the controlling law,” and it “may not be used to 24 raise arguments or present evidence for the first time when they could reasonably have been 25 raised earlier in the litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 26 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted) (emphasis in 27 2 On December 11, 2020, the undersigned entered an amended order correcting the filing fee 28 amount. (Doc. No. 6.) 1 original). Further, Local Rule 230(j) requires, in relevant part, that a movant show “what new or 2 different facts or circumstances are claimed to exist which did not exist or were not shown” 3 previously, “what other grounds exist for the motion,” and “why the facts or circumstances were 4 not shown” at the time the substance of the order which is objected to was considered. 5 Here, plaintiff has not demonstrated grounds upon which this court should grant his 6 motion for reconsideration. Plaintiff argues that he is under imminent danger and should be 7 granted leave to proceed in forma pauperis because, since July 29, 2016, transportation officers 8 have continuously threatened him with attacks and threatened to have him killed every time he is 9 sent out for course proceedings. (Doc. No. 7 at 1.) Specifically, plaintiff states that on October 1, 10 2020, and October 5, 2020, correctional officers threatened him with an assault and an order to 11 have him killed in the yard. (Id.) Further, on November 14, 2020, plaintiff states that he was 12 attacked and stabbed multiple times on the orders of defendants Pfeifer, Sullivan, and Arlitz. (Id. 13 at 2.) 14 As explained in the court’s previous order, the findings and recommendations concluded 15 that plaintiff was not in imminent danger because he filed this action over 15 months after the 16 events alleged in his complaint occurred and plaintiff has not addressed that conclusion in his 17 motion for reconsideration. (See Doc. Nos. 4-6.) None of plaintiff’s allegations in his motion for 18 reconsideration establish that he was in imminent danger of serious physical injury at the time the 19 complaint was filed in this action, as opposed to at some earlier or later time. Section 1915(g)’s 20 imminent danger exception applies “if the complaint makes a plausible allegation that the 21 prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.” Andrews v. 22 Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007); see also id. at 1053 (The availability of the 23 imminent danger exception “turns on the conditions a prisoner faced at the time the complaint 24 was filed, not at some earlier or later time.”). Furthermore, plaintiff alleges that the October 1, 25 2020 and October 5, 2020 threats were made by John Doe correctional officers rather than the 26 defendants in this case. These events therefore do not appear to be related to the claims presented 27 by plaintiff in this action. See Chappell v. Fleming, No. 2:12-cv-0234 MCE AC, 2013 WL 28 2156575, at *6 (E.D. Cal. May 17, 2013) (declining to find imminent danger because “Plaintiff’s 1 | legal claims, as raised in the complaint, d[id] not establish a nexus between the unlawful conduct 2 | and the perceived threat to plaintiffs safety”), report and recommendation adopted, No. 2:12-cv- 3 | 0234 MCE AC, 2013 WL 3872794 (E.D. Cal. July 25, 2013). 4 The time period provided for plaintiff to pay the required filing fee to pursue this action 5 || has expired, and plaintiff has not paid that filing fee. However, plaintiffs objections are dated 6 || December 21, 2020, indicating that they may have been mailed within the time period provided 7 | by the court for paying the filing fee. In light of plaintiff's pro se status and current 8 | imprisonment, the court will grant plaintiff an additional twenty-one (21) days to pay the required 9 | filing fee. 10 Accordingly: 11 1. Plaintiffs motion for clarification (Doc. No. 7), deemed to be a motion for 12 reconsideration, is denied; 13 2. Within twenty-one (21) days following the date of service of this order, plaintiff 14 shall pay the $402.00 filing fee in full to proceed with this action; 15 3. Plaintiff's failure to pay the required filing fee as ordered will result in the 16 dismissal of this action with prejudice; and 17 4. This case is referred back to the assigned magistrate judge for further proceedings. 18 | IT IS SO ORDERED. me □ | Dated: _ January 13,2021 Yola A Lange 20 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28