(PC) Stephens v. Bragg ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 | Jimmie Stephens, No. 2:23-cev-01172-KJM-AC 12 Plaintiff, ORDER 13 v. L. Bragg, et al., 1S Defendants. 16 17 On June 27, 2023, the magistrate judge issued findings and recommendations 18 | recommending that plaintiffs application to proceed in forma pauperis be denied and that 19 | plaintiff be ordered to pay the filing fee prior to any further proceedings in this action. F. & R. at 20 | 5, ECF No. 6. The magistrate judge concluded plaintiff is a three-strikes litigant within the 21 | meaning of 28 U.S.C. § 1915(g). Jd. This court adopted the findings and recommendations in 22 | full and denied plaintiff's motion to proceed in forma pauperis. Prior Order at 2, ECF No. 13. 23 | Plaintiff now objects to this court’s order. Objs., ECF No. 14. Plaintiff argues his prior actions 24 | should not have counted as “strikes.” See generally id. The court construes the objections as a 25 | motion for reconsideration and denies the motion. 26 “As long as a district court has jurisdiction over the case, then it possesses the inherent 27 | procedural power to reconsider, rescind, or modify an interlocutory order for cause seen by it to 28 | be sufficient.” City of L.A., Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 1 } 2001) (emphasis and citation omitted). “Thus, the court may reconsider previously decided 2 | questions in cases in which there has been an intervening change of controlling authority, new 3 | evidence has surfaced, or the previous disposition was clearly erroneous and would work a 4 | manifest injustice.” Leslie Salt Co. v. United States, 55 F.3d 1388, 1393 (9th Cir. 1995). This 5 | court’s local rules also govern reconsideration. They require the moving party to provide “what 6 | new or different facts or circumstances are claimed to exist which did not exist or were not 7 | shown” or “what other grounds exist for the motion” and “why the facts or circumstances were 8 | not shown at the time of the prior motion.” E.D. Cal. L.R. 230q). 9 Reconsideration is not warranted here. There are no new facts, nor changes in controlling 10 | law. Instead, plaintiff argues his prior strikes were “illegal” and should not count as strikes under 11 | 28U.S.C. § 1915(g). Objs. at 3. Plaintiff moves the court for an “order striking all 6 presented 12 | strikes[.]” /d. Under 28 U.S.C. § 1915, plaintiff may not proceed in forma pauperis if he has 13 | brought an action or appeal “that was dismissed on the grounds that it is frivolous, malicious, or 14 | fails to state a claim upon which relief may be granted” on three or more prior occasions, unless 15 | the “imminent danger” exception applies. 28 U.S.C. § 1915(g). As the magistrate judge correctly 16 | found, at least three of plaintiffs prior actions or appeals have been dismissed on the grounds that 17 | they were frivolous or failed to state a claim. See F. & R. at 3. Therefore, unless plaintiff can 18 | show he “is under imminent danger of serious physical injury,” 28 U.S.C. § 1915(g), plaintiff 19 | cannot proceed in forma pauperis. He must pay the filing fee. To the extent plaintiff asks the 20 | court to strike the decisions of other courts, the court has no jurisdiction to do so. The motion is 21 | denied. Further filings from plaintiff will be disregarded and the case may be dismissed unless 22 | plaintiff pays the filing fee. 23 This order resolves ECF No. 14. 24 IT IS SO ORDERED. 25 DATED: September 21, 2023. 26 ee CHIEF ED STATES DISTRICT JUDGE 45