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Grandinetti v. Sells

United States District Court, D. Hawaii

November 7, 2016

FRANCIS GRANDINETTI, #A0185087, Plaintiff,
v.
PATRICIA SELLS, Defendant.

          ORDER DENYING MOTION FOR RECONSIDERATION

          Derrick K. Watson United States District Judge

         On 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.

         On 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.

         On 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.

         On 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.

         On 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”).

         I. LEGAL STANDARD

         When a 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).

         Amending 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 unavailable evidence;
(3) such motion is necessary to prevent manifest injustice; or (4) the amendment is justified by an intervening change in controlling law.

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).

         II. ANALYSIS

         Plaintiff 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 ...


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