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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 JAMES BOWELL, 1:17-cv-00605-LJO-GSA-PC

12 Plaintiff, FINDINGS AND RECOMMENDATIONS,

RECOMMENDING THAT DEFENDANTS’

13 vs. MOTION TO SET ASIDE COURT’S

ORDER BE GRANTED, AND

14 F. MONTOYA, et al., PLAINTIFF’S MOTION FOR

RECONSIDERATION OF COURT’S

15 Defendants. ORDER BE DENIED AS MOOT (ECF Nos. 48, 49.) 16

OBJECTIONS, IF ANY, DUE WITHIN

17 FOURTEEN (14) DAYS

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19 20 I. BACKGROUND 21 James Bowell (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action 22 pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s First Amended 23 Complaint filed on May 3, 2018, against Defendants Montoya and Carter for violation of due 24 process under the Fourteenth Amendment, and against Defendants Killmer and Lopez for 25 conspiracy to place Plaintiff at risk of serious harm and for failure to protect Plaintiff under the 26 Eighth Amendment. (ECF No. 16.)1 27 28 1 On October 25, 2018, the court issued an order dismissing all other claims and defendants from this case, for Plaintiff’s failure to state a claim. (ECF No. 20.) 1 On January 10, 2019, Defendants filed a motion for an order revoking Plaintiff’s in 2 forma pauperis status based on his accumulation of “three strikes” under U.S.C. § 1915(g). 3 (ECF No. 24.) On April 12, 2019, the court entered findings and recommendations, 4 recommending that Defendants’ motion be granted. (ECF No. 39.) On May 1, 2019, the 5 district court adopted the findings and recommendations granting Defendants’ motion to revoke 6 Plaintiff’s in forma pauperis status and requiring Plaintiff to pay the $398.00 balance of the 7 filing fee for this case, within thirty days. (ECF No. 42.) On May 20, 2019, Plaintiff requested 8 a 120-day extension of time to pay the filing fee which was granted by the court on June 4, 9 2019. (ECF. Nos. 45, 47.) To date, Plaintiff has not paid the filing fee. 10 On August 27, 2019, Defendants filed a motion to set aside the court’s May 1, 2019 11 order in light of a decision by the Ninth Circuit Court of Appeals in Harris v. Harris, No. 16- 12 55083, 2019 WL 3938883 (9th Cir. Aug 21, 2019). (ECF No. 48.) On September 3, 2019, 13 Plaintiff filed a motion for reconsideration of the May 1, 2019 order. (ECF No. 49.) 14 II. HARRIS V. HARRIS 15 On August 21, 2019, in Harris v. Harris, the Ninth Circuit Court of Appeals held that 16 the dismissal of a prior action after declining to exercise supplemental jurisdiction over state 17 law claims did not qualify as a “strike” under 28 U.S.C. § 1915(g). Harris, 2019 WL 3938883, 18 at *3. The Court reasoned that because “[d]ismissal based on a district court’s decision not to 19 exercise supplemental jurisdiction is not an enumerated ground under § 1915(g),” a dismissal 20 on a ground other than frivolousness, maliciousness, or failure to state a claim will not qualify 21 as a strike. Id. (quoting Fourstar v. Garden City Grp., Inc., 875 F.3d 1147, 1152 (D.C. Cir 22 2017). Thus, “[u]nless an incarcerated litigant has accrued three strikes on grounds plainly 23 enumerated in § 1915(g), she is entitled to IFP status.” Harris, 2019 WL 3938883, at *5. 24 III. DEFENDANTS’ MOTION TO SET ASIDE THE COURT’S ORDER 25 Based on the decision in Harris, Defendants request the court to set aside its May 1, 26 2019 order revoking Plaintiff’s in forma pauperis status. Defendants concede that one of the 27 three cases identified by Defendants as a basis for revoking Plaintiff’s IFP status, Bowell v. 28 California Substance Abuse Treatment Facility at Corcoran, E.D. Cal. 1:10-cv-02336-AWI- 1 DLB, no longer qualifies as a strike under Harris because the district court dismissed the case 2 and declined supplemental jurisdiction over Plaintiff’s attendant state-law claims. In light of 3 Harris, Defendants assert that it no longer appears that Plaintiff accrued three or more strikes 4 prior to bringing this action. Accordingly, Defendants request the court to “set aside its order 5 revoking Plaintiff’s IFP status under Rule 60(b)(6) of the Federal Rules of Civil Procedure, 6 which allows a final order to be set aside for any reason that ‘justifies relief.’” (ECF No. 48 at 7 3 ¶ II.) Defendants also request that the court allow them 21 days from its order on this motion 8 to file a responsive pleading. 9 IV. PLAINTIFF’S MOTION FOR RECONSIDERATION 10 A. Motion for Reconsideration 11 Plaintiff brings a motion for reconsideration of the May 1, 2019 order revoking his in 12 forma pauperis status. 13 Rule 60(b)(6) allows the Court to relieve a party from an order for any reason that 14 justifies relief. Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent 15 manifest injustice and is to be utilized only where extraordinary circumstances . . .” exist. 16 Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation 17 omitted). The moving party “must demonstrate both injury and circumstances beyond his 18 control . . . .” Id. (internal quotation marks and citation omitted). In seeking reconsideration of 19 an order, Local Rule 230(k) requires Plaintiff to show “what new or different facts or 20 circumstances are claimed to exist which did not exist or were not shown upon such prior 21 motion, or what other grounds exist for the motion.” 22 “A motion for reconsideration should not be granted, absent highly unusual 23 circumstances, unless the district court is presented with newly discovered evidence, committed 24 clear error, or if there is an intervening change in the controlling law,” Marlyn Nutraceuticals, 25 Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotation 26 marks and citations omitted, and “[a] party seeking reconsideration must show more than a 27 disagreement with the Court’s decision, and recapitulation . . . ” of that which was already 28 considered by the Court in rendering its decision,” U.S. v. Westlands Water Dist., 134 1 F.Supp.2d 1111, 1131 (E.D. Cal. 2001). To succeed, a party must set forth facts or law of a 2 strongly convincing nature to induce the court to reverse its prior decision. See Kern-Tulare 3 Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and 4 reversed in part on other grounds, 828 F.2d 514 (9th Cir. 1987). 5 Plaintiff asserts that the alleged strike against him by the United States Supreme Court 6 in Bowell v. Smith, 14-6326, is not a strike because the dismissal in that case was simply for 7 failure to exhaust administrative remedies. 8 Plaintiff requests 120 days before discovery is opened or trial is scheduled in this case 9 to obtain his release from custody pursuant to his habeas corpus petitions, and to hire a law firm 10 team. 11 VI. DISCUSSION 12 The recent decision in Harris is an intervening change in the controlling law deciding 13 when the dismissal of a case qualifies as a “strike” under 28 U.S.C. § 1915(g). It is evident that 14 under the new law Defendants cannot show that Plaintiff accrued three strikes before filing this 15 case. Therefore, Defendants’ motion to set aside the court’s order should be granted and the 16 May 1, 2019 order revoking Plaintiff’s in forma pauperis status should be vacated. In light of 17 that decision, Plaintiff’s motion for reconsideration should be denied as moot. The court 18 should also reinstate its May 16, 2017 order granting Plaintiff leave to proceed in forma 19 pauperis. Good cause appearing, the court shall recommend that Defendants be granted 21 20 days from the date of service of this order to file a responsive pleading, and Plaintiff be allowed 21 120 days before the court opens discovery in this case. 22 VII. CONCLUSION AND RECOMMENDATIONS 23 Based on the foregoing, THE COURT HEREBY RECOMMENDS that: 24 1. Defendants’ motion to set aside the court’s order revoking Plaintiff’s in forma 25 pauperis status, filed on August 27, 2019, be GRANTED; 26 2. The court’s order issued on May 1, 2019, revoking Plaintiff’s in forma pauperis 27 status, be VACATED; 28 1 3. Plaintiff’s motion for reconsideration, filed on September 3, 2019, be DENIED 2 as moot; 3 4. The court’s order issued on May 16, 2017, granting Plaintiff leave to proceed in 4 forma pauperis in this case, be REINSTATED; 5 5. Plaintiff be GRANTED leave to proceed in forma pauperis in this case; 6 6. Defendants be GRANTED twenty-one days from the date of service of this 7 order in which to file a pleading responsive to the complaint; 8 7. Plaintiff be GRANTED one hundred-twenty days from the date of service of this 9 order before discovery is opened in this case; and 10 8. This case be REFERRED back to the Magistrate Judge for further proceedings. 11 These Findings and Recommendations will be submitted to the United States District 12 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within 13 fourteen (14) days after the date of service of these Findings and Recommendations, any party 14 may file written objections with the Court. The document should be captioned “Objections to 15 Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be 16 served and filed within ten days after the objections are filed. The parties are advised that 17 failure to file objections within the specified time may waive the right to appeal the District 18 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 19

IT IS SO ORDERED.

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21 Dated: September 12, 2019 /s/ Gary S. Austin

UNITED STATES MAGISTRATE JUDGE

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