Humphreys v. CCS Rose

• Court: District Court, E.D. Washington
• Decided: July 26, 2023
• Docket: 4:23-cv-05054
• Status: Unknown

Opinion

1 FILED IN THE U.S. DISTRICT COURT 2 EASTERN DISTRICT OF WASHINGTON Jul 26, 2023 3 SEAN F. MCAVOY, CLERK 4

5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6

7 SCOTT W. HUMPHREYS, No. 4:23-cv-05054-RMP 8 Plaintiff, ORDER DISMISSING FOR LACK 9 v. OF JURISDICTION PLAINTIFF’S CONSTRUED MOTION FOR 10 CCS ROSE, et al., RECONSIDERATION

11 Defendants.

13 Before the Court is a construed Motion for Reconsideration filed by pro se 14 Plaintiff Scott W. Humphreys, a prisoner currently housed at the Coyote Ridge 15 Corrections Center (“CRCC”). ECF No. 17. 16 BACKGROUND 17 On April 24, 2023, Plaintiff filed a construed pro se civil rights complaint 18 pursuant to 42 U.S.C. § 1983. ECF No. 1. On June 12, 2023, in an Order to Show 19 Cause, the Court determined that because Plaintiff had brought at least three other 20 cases that were dismissed as frivolous, malicious, or failed to state a claim, 21 Plaintiff had lost the privilege of filing additional suits in forma pauperis unless he 1 was able to demonstrate that he was “under imminent danger of serious physical 2 injury.” ECF No. 7 at 2–3 (citing 28 U.S.C. § 1915(g); see Andrews v. Cervantes,

3 493 F.3d 1047, 1055–56 (9th Cir. 2007) (discussing imminent danger exception to 4 three-strikes rule)). 5 On July 18, 2023, after reviewing Plaintiff’s construed response to the

6 Court’s Order to Show Cause, the Court denied Plaintiff’s application to proceed in 7 forma pauperis and dismissed the action without prejudice. ECF No. 12. The 8 Court entered judgment the same day. ECF No. 13. On July 19, 2023, Plaintiff 9 filed a Notice of Appeal with the Ninth Circuit Court of Appeals. ECF No. 14.

10 On July 24, 2023, Plaintiff filed the instant construed Motion for 11 Reconsideration. ECF No. 17. For the reasons set forth below, the Court 12 dismisses Plaintiff’s Motion for Reconsideration for lack of jurisdiction.

13 MOTION FOR RECONSIDERATION 14 As a threshold matter, “[t]he filing of a notice of appeal generally divests the 15 district court of jurisdiction over the matters appealed.” Davis v. United States, 16 667 F.3d 822, 824 (9th Cir. 1982). A district court may resolve a motion for

17 reconsideration that was pending before the notice of appeal was filed. United 18 Nat’l Ins. Co. v. R&D Latex Corp., 242 F.3d 1102, 1109 (9th Cir. 2001); Fed. R. 19 App. P. 4(a)(4)(B)(i)). However, when a motion for reconsideration is filed after a

20 notice of appeal, the district court lacks jurisdiction to adjudicate the motion unless 21 the plaintiff has followed the proper procedure to bring the motion back before the 1 Court. See Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 2002). The United 2 States Court of Appeals for the Ninth Circuit has prescribed that “the proper

3 procedure is to ask the district court whether it wishes to entertain the motion, or to 4 grant it, and then move [the Court of Appeals], if appropriate, for remand of the 5 case.” Williams, 384 F.3d at 586 (international quotation and citation omitted).

6 Plaintiff has not sought remand and filed his Motion for Reconsideration 7 approximately five days after he filed his Notice of Appeal. See ECF No. 17. 8 Therefore, the Court lacks jurisdiction to grant or deny Plaintiff’s Motion for 9 Reconsideration at this time.

10 Nonetheless, in the interest of judicial economy and clarity for Plaintiff, the 11 Court also discusses how it would resolve Plaintiff’s Motion for Reconsideration 12 on its merits, were Plaintiff to seek remand for purposes of the Motion. A motion

13 for reconsideration may be reviewed under either Federal Rule of Civil Procedure 14 Rule 59(e) (motion to alter or amend a judgment) or Rule 60(b) (relief from 15 judgment). Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 16 1262 (9th Cir. 1993). “A district court may properly reconsider its decision if it

17 ‘(1) is presented with newly discovered evidence, (2) committed clear error or the 18 initial decision was manifestly unjust, or (3) if there is an intervening change in 19 controlling law.’” Smith v. Clark Cnty. Sch. Dist., 727 F.3d 950, 955 (9th Cir.

20 2013) (quoting School Dist. No. 1J , Multnomah Cnty., Or., 5 F.3d at 1263). 21 1 “There may also be other, highly unusual, circumstances warranting 2 reconsideration.” School Dist. No. 1J Multnomah Cnty., Or., 5 F.3d at 1263.

3 Plaintiff’s assertions set forth in the construed Motion for Reconsideration 4 are difficult to decipher. However, Plaintiff presents no new facts, information, or 5 newly discovered evidence for the Court to consider in evaluating his request. Id.

6 He has not shown that the Court committed clear error or that the Court’s Order 7 Denying Leave to Proceed In Forma Pauperis and Dismissing Action, ECF No. 8 12, was manifestly unjust. Furthermore, there has been no intervening change in 9 controlling law and there are no other circumstances warranting reconsideration.

10 Id. 11 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s construed Motion 12 for Reconsideration, ECF No. 17, is DISMISSED FOR LACK OF

13 JURISDICTION. Furthermore, this Order serves as notice that this Court does 14 not wish to entertain nor grant Plaintiff’s Motion for Reconsideration and, 15 consequently, a request to remand the action for that purpose is unwarranted. 16 IT IS SO ORDERED. The District Court Clerk is directed to enter this

17 Order and provide a copy to Plaintiff. 18 DATED July 26, 2023.

19 s/ Rosanna Malouf Peterson 20 ROSANNA MALOUF PETERSON Senior United States District Judge 21