Johnson v. Cuevas ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PAUL DAVID JOHNSON, Case No. 21-cv-05264-JSW 8 Plaintiff, ORDER DENYING MOTION FOR RECONSIDERATION; OF DISMISSAL v. 9 Re: Dkt. No. 31 10 A. CUEVAS, et al., Defendants. 11 12 On January 17, 2023, Plaintiff was denied leave to proceed in forma pauperis under 28 13 U.S.C. § 1915(g) (“three strikes” provision of the PLRA) and ordered to pay the filing fee within 14 28 days. He was cautioned that his failure to do so would result in the dismissal of this case 15 without prejudice. He did not pay the filing fee, show cause why not, or seek an extension of time 16 to do so before the deadline.1 17 Approximately four months after the filing fee was due, Plaintiff filed a motion for 18 reconsideration of the order denying him leave to proceed in forma pauperis. No pre-judgment 19 motion for reconsideration under Local Rule 7-9 may be brought without leave of court. See Civil 20 L.R. 7-9(a). The moving party must specifically show: (1) that at the time of the motion for leave, 21 a material difference in fact or law exists from that which was presented to the court before entry 22 of the interlocutory order for which the reconsideration is sought, and that in the exercise of 23 reasonable diligence the party applying for reconsideration did not know such fact or law at the 24 time of the interlocutory order; or (2) the emergence of new material facts or a change of law 25 occurring after the time of such order; or (3) a manifest failure by the court to consider material 26 facts which were presented to the court before such interlocutory order. See Civil L.R. 7-9(b). 27 1 Under Rule 54(b) of the Federal Rules of Civil Procedure, reconsideration of a pre-judgment order 2 “is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed 3 clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in 4 controlling law.” School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). 5 Plaintiff has not shown there was a material difference in facts or a change of law at the 6 time of or since the order revoking leave to proceed in forma pauperis. Nor has he shown a 7 manifest failure by the Court to consider facts presented, clear error, or manifest injustice. Rather, 8 Plaintiff alleges that “has been in imminent danger since 29 june 2020 when he was expose[d] to 9 the Corona Virus COVID-19 and again on September 18, 2022.” (ECF No. 31 at 1.) The plain 10 language of the imminent danger exception to Section 1915(g) indicates that "imminent danger" is 11 to be assessed at the time the prisoner filed his case. Andrews v. Cervantes, 493 F.3d 1047, 1053 12 (9th Cir. 2007). Plaintiff filed his case on July 28, 2021, more than a year after he was allegedly 13 exposed to the virus for the first time, on June 29, 2020, and more than a year before his second 14 alleged exposure. Plaintiff’s conclusory allegation that he was continuously under imminent 15 danger following his first exposure is not sufficient. Plaintiff does not allege why he would still 16 be in danger of contracting the disease more than a year after being exposed, or more than a year 17 before being exposed again. Secondly, Plaintiff did not mention this alleged danger in his 18 complaint, nor does he explain why. If there were in fact any circumstances that put him in 19 imminent danger of getting the virus in July 2021, such facts would have been known to him or, if 20 they were not, he has not shown he exercised reasonable diligence in trying to learn these facts. 21 Nor does he explain why he waited over five months after the denial of leave to proceed under 22 Section 1915(g), and over four months after the dismissal of his appeal, to seek reconsideration. 23 Accordingly, Plaintiff has satisfied the requirements of Civil Local Rule 7-9 or Rule 54(b) of the 24 Federal Rules of Civil Procedure. The motion for reconsideration is DENIED. 25 // 26 // 27 1 This case is DISMISSED without prejudice because Plaintiff did not pay the filing fee, 2 seek an extension of time to do so, or show cause why not before the deadline. 3 The Clerk shall enter judgment and close the file. 4 IT IS SO ORDERED. 5 6 7 IT IS SO ORDERED. 8 Dated: November 2, 2023 “| lh AW □□ i 10 \ l APS JEFFRFY) S; WHITE United/Statés [istrict Judge «= 12 : 13 © 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28