Rowell v. Skolnik

Full title: LAMARR ROWELL, #61987 Plaintiff, v. HOWARD SKOLNIK, et al., Defendants

Court: United States District Court, D. Nevada

Date published: Feb 17, 2011

3:10-cv-00675-ECR-RAM (D. Nev. Feb. 17, 2011)

Opinion

3:10-cv-00675-ECR-RAM.

February 17, 2011

ORDER

EDWARD REED, District Judge

On February 1, 2011, the court denied plaintiff's application to proceed in forma pauperis in this action because on at least three (3) occasions, the court has dismissed civil actions commenced by plaintiff while in detention for failure to state a claim upon which relief may be granted.¹ 28 U.S.C. § 1915(g). Before the court is plaintiff's motion to vacate court order due to court error (docket #5).

1 See Rowell v. Mr. Griegas, et al., 2:01-cv-00654-LDG-RJJ; Rowell v. Clark County Detention Center, et al., 2:07-cv-01055-RLH-PAL; Rowell v. Giannone, et al., 2:07-cv-01185-KJD-GWF. The court takes judicial notice of its prior records in the above matters.

Where a ruling has resulted in final judgment or order, a motion for reconsideration may be construed either as a motion to alter or amend judgment pursuant to Federal Rule of Civil Procedure 59(e), or as a motion for relief from judgment pursuant to Federal Rule 60(b). School Dist. No. 1J Multnomah County v. AC S, Inc., 5 F.3d 1255, 1262 (9^th Cir. 1993), cert. denied 512 U.S. 1236 (1994).

Under Fed.R.Civ.P. 60(b) the court may relieve a party from a final judgment or order for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.

Motions to reconsider are generally left to the discretion of the trial court. See Combs v. Nick Garin Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987). In order to succeed on a motion to reconsider, a party must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision. See Kern-Tulare Water Dist. v. City of Bakersfield, 634 F. Supp. 656, 665 (E.D. Cal. 1986), aff'd in part and rev'd in part on other grounds 828 F.2d 514 (9^th Cir. 1987). Rule 59(e) of the Federal Rules of Civil Procedure provides that any "motion to alter or amend a judgment shall be filed no later than 28 days after entry of the judgment." Furthermore, a motion under Fed.R.Civ.P. 59(e) "should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law." Herbst v. Cook, 260 F.3d 1039, 1044 (9^th Cir. 2001), quoting McDowell v. Calderon, 197 F.3d 1253, 1255 (9^th Cir. 1999).

In his motion, plaintiff argues that the court has incorrectly assessed him three strikes. Plaintiff acknowledges that Rowell v. Mr. Griegas, et al., 2:01-cv-00654-LDG-RJJ constitutes one strike. Plaintiff claims that Rowell v. Clark County Detention Center, et al., 2:07-cv-01055-RLH-PAL should not constitute a strike. However, in that action, plaintiff's complaint was dismissed for failure to state a claim for which relief may be granted (2:07-cv-01185-KJD-GWF, docket #4). Finally, in Rowell v. Clark County Detention Center, et al., 2:07-cv-01055-RLH-PAL, plaintiff is correct that the court dismissed his complaint with leave to amend. However, that complaint was dismissed for failure to state a claim for which relief may be granted, albeit with leave to amend. Plaintiff did not file an amended complaint; instead he voluntarily dismissed the case (2:07-cv-01055-RLH-PAL, docket #4). Courts have held that when a plaintiff's complaint has been dismissed for failure to state a claim for which relief may be granted with leave to amend and the plaintiff voluntarily dismisses the action, that the plaintiff is entitled to have his action dismissed without prejudice, but that he may be required to "shoulder the consequences." Sumner v. Tucker, 9 F.Supp.2d 641, 644 (E.D.Va. 1998) (assessing a strike pursuant to 28 U.S.C. § 1915(g) when an inmate plaintiff voluntarily dismissed instead of filing an amended complaint). It would frustrate the system if an inmate was allowed to exploit the system by filing a meritless action and waiting until after it was reviewed to move for its dismissal. Id. Finally, the court notes that an order dismissing a complaint for failure to state a claim for which relief may be granted need not explicitly assess a strike under 28 U.S.C. § 1915(g) in order to count as such. See, e.g., Andrews v. King, 389 F.3d 1113 (9^th Cir. 2005) (reviewing whether district court's assessment of plaintiff's litigation history accurately counted his "strikes").

Accordingly, plaintiff has failed to make a showing under either Rule 60(b) or 59(e) that this court's order denying his motion to proceed in forma pauperis should be reversed.

IT IS THEREFORE ORDERED that plaintiff's motion to vacate court order (docket #5) is DENIED.

Dated this 16th day of February, 2011.