Allah v. Holbrook

2 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON Dec 16, 2019 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERNDISTRICT OF WASHINGTON ALLAH©, 4:19-cv-05178-SAB 10 Plaintiff, 11 v. ORDERDENYINGMOTION 12 FOR TEMPORARY DONALD HOLBROOK, et al., RESTRAINING ORDER AND 14 Defendants. RULE 60(b)MOTION 17 On October 10, 2019, this Court denied Allah© leave to proceed in forma pauperisbased on 28 U.S.C. § 1915(g)and dismissed this actionfor non-payment of the filing fee. ECF No. 13. Plaintiff is a pro se prisoner at the Washington State Penitentiary.

21 The Court found the Ninth Circuit hadacknowledged that Plaintiff is precluded fromproceedingin forma pauperis.See Allah v. Sherfey, No. 2:17-cv- 01746-RSM(W.D. Wash. Mar. 7, 2018) (Denial of in forma pauperis application based on 1915(g) was appealed [18-35215] and the Ninth Circuit denied the motion toproceed in forma pauperis on appeal “because appellant has had three or moreprior actions or appeals dismissed as frivolous, malicious, or for failure to state aclaim upon which relief may be granted and appellant has not alleged imminentdanger of serious physical injury,” [18-35215, ECF No. 11], Mandate issued Dec.21, 2018, plus 21 days).ECF No. 7 at 3. The Court certified that any appeal would not be taken in good faith and judgment was entered. ECF No. 13at 3 and ECF No. 14.

4 On October 11, 2019, Plaintiffsubmitted a Motion for Temporary Restraining Orderseeking his immediate release from his allegedly false/illegal imprisonment. ECF No. 15. In light of the disposition of this action, the Motion is DENIED as moot.

8 On October 15, 2019, Plaintiff filed a document titled, “F.R.C.P. Rule 60(b)(1) Excusable Neglect, Surprise, Inadvertence,” which was construed as a Rule 60(b) Motion. ECF No. 16. Plaintiff asserts that he “has sent a check for $25,405.00 which is coming from the Minnesota Secretary of State Office UCC Division.” ECF No. 16 at 1.

13 The applicable filing fee for a civil rights complaint is $400.00 ($350.00 filing fee plus $50.00 administrative fee). Only the exact amount of the payment can be received by the Clerk of Court. Plaintiff has provided no such payment.

16 FederalRuleof Civil Procedure 60(b) provides that “[o]n motion and upon such terms as are just, the court may relieve a party...from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect. . .” Relief under Rule 60 “is to be used sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary circumstances exist.” Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotation marks and citation omitted). The moving party “must demonstrate both injury and circumstances beyond his control.” Id.(internal quotation marks and citation omitted).

25 A motion for reconsideration “may notbe used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (emphasis in original). Here, Plaintiff has identified no mistake, inadvertence, surprise or excusable neglect. The Court finds no reason to reconsider the Order denying leave to proceed in forma pauperis and dismissing this action for non-payment of the filing fee under 28 U.S.C. § 1914. Therefore, Plaintiff s construed Rule 60(b) Motion, ECF No. 16is DENIED.

IT IS SO ORDERED. The Clerk of Court is directed to enter this Order and provide a copy to Plaintiff. The file shall remain closed. The Court certifies any appeal of this Order would not be taken in good faith.

DATED this 16th day of December 2019.

1] ‘ Sloukeyld Festa Stanley A. Bastian United States District Judge ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER ARTITINDTIWT OC CAD\ RATRTIANT □□