Free Order on Motion for Reconsideration - District Court of Delaware - Delaware

Case #08-cvL00590-SLR Document 6 Filed 01/12/2007 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
GBEKE MICHAEL AWALA, )
Plaintiff, )
v. ) Civ. No. 06-590-SLR
MARTIN P. DURKIN, et al., )
Defendants. )
MEMORANDUM ORDER
At Wilmington this IEE day of %&§gjg% , 200;L, having
reviewed plaintiff’s motion for reconsideration;
IT IS ORDERED that the motion is denied, for the reasons
that follow:
1. Background. Plaintiff Gbeke Michael Awala, is a pro se
litigant incarcerated at the Moshannon Valley Correctional
Facility, Philipsburg, Pennsylvania. Plaintiff filed this action
I pursuant to 42 U.S.C. § 1983, without prepayment of filing fee
and without filing a motion for leave to proceed in forma
pauperis. The court took judicial notice that in every case
filed by plaintiff he had not paid a filing fee and that court
filings demonstrated plaintiff had no funds to pay the filing
fee. (D.I. 3) Plaintiff was denied leave to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915 because in the past he has
filed at least three actions that were dismissed as frivolous,
malicious, or for failure to state a claim. (D.I. 3) On October
3, 2006, he was ordered to pay the $350 filing fee within thirty
days or the complaint would be dismissed. Id; Rather than pay

Case 1:06io;/-;00590-SLR Document 6 Filed 01/12/2007 Page 2 of 4
the filing fee, plaintiff moves for reconsideration of the “three
strikes” order. (D.I. 4)
2. Standard of Review. The standard for obtaining relief
under Rule 59(e) is difficult for plaintiff to meet. The purpose
of a motion for reconsideration is to correct manifest errors of
law or fact or to present newly discovered evidence. Harsco
Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). A motion
for reconsideration may be granted if the moving party shows: (1)
an intervening change in the controlling law; (2) the
availability of new evidence that was not available when the
court issued its order; or (3) the need to correct a clear error
of law or fact or to prevent manifest injustice. Max's Seafood
Café v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).
3. A motion for reconsideration is not properly grounded on
a request that a court rethink a decision already made. See
Glendon Energy Co. v. Borough of Glendon, 836 F.Supp. 1109, 1122
(E.D. Pa.1993). Motions for reargument or reconsideration may
not be used “as a means to argue new facts or issues that
inexcusably were not presented to the court in the matter
previously decided.” Brambles USA, Inc. v. Blocker, 735 F.Supp.
1239, 1240 (D. Del. 1990). Reargument, however, may be
appropriate where “the Court has patently misunderstood a party,
or has made a decision outside the adversarial issues presented
to the Court by the parties, or has made an error not of
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Case 1:06-cv—00590-SLR Document 6 Filed 01/12/2007 Page 3 of 4
reasoning but of apprehension.” Brambles USA, 735 F.Supp. at
1241 (D. Del. 1990) (citations omitted); See also D. Del. LR
7.1.5.
4. Discussion. Plaintiff alleges that he was a victim of
“miscarriage of justice" during federal criminal proceedings held
in this district. (D.I. 1) Plaintiff moves for consideration of
the “three strikes" order on the basis that he did not file a
motion for leave to proceed in forma pauperis at the time he
filed the complaint. He indicates that he has no money to pay
the filing fee, but nonetheless argues that the court
circumvented 28 U.S.C. § 1915 in entering the “three strikes”
order. Alternatively, plaintiff argues that the court may
recover monies for the filing fee from the U.S. Department of the
Treasury as it exercises custody over funds “representing money
that federal agencies owe to American citizens whose whereabouts
are unknown.” (D.I. 4 at 3) Plaintiff also argues that his
complaint is neither frivolous nor malicious and the case should
go forward.
5. Plaintiff does not argue there was an intervening change
in the controlling law or the availability of new evidence that
was not available when the October 3, 2006 order was issued.
Rather, he simply disagrees with the fact that he is required to
pay the $350 filing fee.
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Case 1 :06-cv—00590-SLR Document 6 Fi|ed,O1/12/2007 Page 4 of 4
6. The law has not changed and there is no new evidence.
Most important, after reviewing the complaint and plaintiff's
pending motion, there is no need to correct a clear error of law
or fact or to prevent manifest injustice. Plaintiff has not
demonstrated any of the grounds necessary to warrant
reconsideration, and therefore, his motion will be denied.
7. Conclusion. There was no intervening change in the
controlling law or new evidence that was not available when the
October 3, 2006 order was entered. Reconsideration is not
warranted. Accordingly, the motion for reconsideration (D.I. 4)
is denied. Plaintiff is given an additional thirty (30} days
from the date of this order to pay the $350.00 filing fee. If he
does not pay the filing fee within that time, the case shall be
dismissed pursuant to 28 U.S.C. § l9l5{g).

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