United States District Court, D. Hawaii
ORDER DENYING MOTION FOR RECONSIDERATION
Derrick K. Watson United States District Judge
September 21, 2016, Plaintiff commenced this prisoner civil
rights action. ECF No. 1. Because Plaintiff neither paid the
filing fee nor submitted an in forma pauperis
(“IFP”) application, the court issued an
automatic Deficiency Order requiring payment of the filing
fee or submission of an IFP application within thirty days.
ECF No. 3.
October 12, 2016, the court screened Plaintiff's
complaint as required under 28 U.S.C. § 1915(e) and
determined that he had accrued three strikes pursuant to
§ 1915(g) and failed to allege facts showing he was in
imminent danger of serious physical injury.
October 14, 2016, the court dismissed the action without
prejudice to Plaintiff refiling his claims in a new action
with concurrent payment of the filing fees. See ECF
No. 4. Judgment entered that day. ECF No. 5.
October 28, 2016, Plaintiff moved to “Enlarge or Extend
IFP Orders on Deadlines for 30 Additional Days.” ECF
No. 6. Plaintiff submitted several copies of his recent
Medical Requests in support of this Motion. Id. The
court reviewed the Motion and Plaintiff's new Medical
Requests and determined that they did not support a
determination that Plaintiff was in imminent danger of
serious physical injury when he filed the Complaint or
Motion. The court denied Plaintiff's Motion for an
extension of time to submit an IFP application or payment,
and, to the extent Plaintiff sought reconsideration, denied
that request. ECF No. 7.
November 2, 2016, Plaintiff filed a document titled
“Written Pro Se Objections to Dismissal Order Filed on
October 14, 2016, ” seeking reconsideration under
Federal Rule of Civil Procedure 59(e). ECF Nos. 8 and 8-1
(mailing documentation, “Written Objections, on 10-day
rule, FRCP 59”).
ruling has resulted in a final judgment or order -- as the
court's October 14, 2016 Order did -- a motion for
reconsideration may be construed as either a motion to alter
or amend judgment under Federal Rule of Civil Procedure 59(e)
or a motion for relief from judgment under Rule 60(b).
Sch. Dist. No. 1J Multnomah Cty. v. ACandS,
Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). Because
Plaintiff filed his Motion within twenty-eight days after
entry of judgment and explicitly states he is objecting
pursuant to Rule 59, the court applies Rule 59(e).
a judgment after entry is “an extraordinary remedy
which should be used sparingly.” McDowell v.
Calderon, 197 F.3d 1253, 1255 n.1 (9th Cir. 1999) (en
banc) (per curiam). A Rule 59(e) motion may be granted if:
(1) such motion is necessary to correct manifest errors of
law or fact upon which the judgment rests; (2) such motion is
necessary to present newly discovered or previously
(3) such motion is necessary to prevent manifest injustice;
or (4) the amendment is justified by an intervening change in
Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111
(9th Cir. 2011). In unusual circumstances, a court may also
consider other grounds for amending or altering a judgment
under Rule 59(e). Id. (allowing amendment for
clerical errors). “A motion for reconsideration is not
intended to be used to reiterate arguments, facts and law
already presented to the court.” Welch v.
Sisto, 2008 WL 4455842, at *1 (E.D. Cal. Oct. 3, 2008).
complains that the October 14, 2016 Order cited incorrect
cases to support a finding that he has accrued three strikes
under § 1915(g). He argues that the court should instead
cite to cases that he filed against Defendant Sells and
others to find that he has accrued three strikes. Plaintiff
is mistaken. The cases ...