Free Memorandum and Order - District Court of Delaware - Delaware

Case 1:07-cv-00110-SLR Document 8 Filed 05/10/2007 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
GBEKE MICHAEL AWALA, )
Plaintiff, g
v. g Civ. Action No. 07-110-***
U.S. ATTORNEY'S OFFICE g
DELAWARE, etal., )
Defendants. g
MEMORANDUM ORDER
At Wilmington this A day of May, 2007, having reviewed plaintiffs motion for
reconsideration;
l`I` IS ORDERED that the motion is denied, for the reasons that follow:
1. Background. Plaintiff Gbeke Michael Awala, is a pro se Iitigant incarcerated
at the Moshannon Valley Correctional Facility, Philipsburg, Pennsylvania. Plaintiff filed
this action pursuant to 42 U.S.C. § 1983, without prepayment of filing fee and without
filing a motion for leave to proceed in forma pauperis. 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, and because his complaint did not allege imminent danger of serious
physical injury. (D.l. 8.) On March 13, 2007, he was ordered to pay the $350 filing fee
within thirty days or the complaint would be dismissed. g Rather than pay the filing
fee, plaintiff moves for reconsideration ofthe "three strikes" order. (D.l. 7.)
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

Case 1:07-cv-00110-SLB Document 8 Filed 05/10/2007 Page 2 of 3
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.
l\/lax'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. g 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 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 argues the court should reconsider the order on the
basis ofthe merits of the claim he should be given leave to amend the original
complaint to cure any deficiencies. (D.I. 7.) Plaintiff argues that he should be granted
leave to proceed in forma pauperis on the basis that he was under imminent danger of
physical at the time of the complaint. g Plaintiff uses the correct "buzz words", but
does not explain what imminent physical danger to which he refers. Additionally, the
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Case 1:07-cv-00110-SLR Document 8 Filed 05/10/2007 Page 3 of 3
court has again reviewed the complaint and finds no indication of imminent danger of
serious physical injury.
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 March 13, 2007
order was issued. Rather, he simply disagrees with the fact that he is required to pay
the $350 filing fee.
6. The law has not changed and there is no new evidence. l\/lost important,
after reviewing the complaint and plaintiffs 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 I\/Iarch 13, 2007 order was entered.
Reconsideration is not warranted. Accordingly, the motion for reconsideration (D.I. 7) is
denied. Plaintiff is given an additional thirty (30) days from the date of this order to pay
the $350.00 filing fee. lf he does not pay the filing fee within that time, the case shall be
dismissed pursuant to 28 U.S.C. § 1915(g).
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