Free Memorandum and Order - District Court of Delaware - Delaware

Case 1:06-cv—00012-KAJ Document 5 Filed 03/17/2006 Page1 of4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
GBEKE MICHAEL AWALA, )
Plaintiff, g
v. g Civ. N0. 08-012-KAJ
8 U.S.C. SECTION 1326, BORDER g
PATROL ACT OF CONGRESS, and )
U. S. CONSTITUTION, )
Defendants. g
MEMORANDUM ORDER
I. INTRODUC'l`ION
Plaintiff Gbeke Michael Awala ("Awala"), is a pro se Iitigant who is currently
incarcerated at the Federal Detention Center in Philadelphia, Pennsylvania. At the time
he filed his complaint (D.l. 2), Awala was incarcerated at the Salem County Correctional
Facility in Woodstown, New Jersey. Awala filed this action pursuant to 42 U.S.C. §
1983 and was denied leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915
because in the past he has Hled at least three actions that were dismissed as frivolous,
malicious, or for failure to state a claim. (D.l. 3.) On January 19, 2008, he was
ordered to pay the $250 filing fee within thirty days or the complaint would be
dismissed. ld. Rather than pay the tiling fee, Awala moves for reconsideration of the
"three strikes" order and also moves for summary judgment. (D.I. 4.)
Il. STANDARD OF REVIEW
The standard for obtaining relief under Rule 59(e) is difhcult for Awala 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. Z/otnicki, 779 F.2d 906, 909

Case 1:06-cv—00012-KAJ Document 5 Filed 03/17/2006 Page 2 of 4
(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).
A motion for reconsideration is not properly grounded on a request that a court
rethink a decision already made. See Glendon Energy C0. 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, lnc. 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.De|. 1990)
(citations omitted); See also D. Del. LR 7.1.5.
Ill. DISCUSSION
Awala hled this lawsuit against a statute, an act of Congress and the U.S.
Constitution. Rather than argue why the Court should reconsider its "three strikes"
order, Awala argues the merits of his case.
A plaintiff may not file another civil action in forma pauperis while incarcerated
unless he is in "imminent danger of serious physical injury" at the time of the filing of his
complaint. 28 U.S.C. § 1915(g); Abdul-Akbar v. McKelvle, 239 F.3d 307, 311 (3d Cir.
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Case 1:06-cv—00012-KAJ Document 5 Filed 03/17/2006 Page 3 of 4
2001). This means that "imminent danger" is measured at the time the complaint is
tiled, not at the time ofthe alleged incident. Abdu/-Akbar v. McKeIvie, 239 F.3d at 311.
Awala does not argue there was an intervening change in the controlling law or
the availability of new evidence that was not available when I issued my order, or that
there is a need to correct a clear error of law or fact. The allegations in the complaint
do not indicate that Awala was in "lmmlnent danger" at the time he tiled the complaint.
Notably, Awala has not demonstrated any ofthe grounds necessary to warrant
reconsideration, and therefore, I will deny his motion.
IV. MOTION FOR SUMMARY JUDGMENT
Awala tiled this lawsuit pursuant to 42 U.S.C. § 1983 against inanimate entities.
Summary judgment is appropriate when "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of Iaw." Fed.R.Civ.P. 56(c). The evidence and all reasonable
inferences are drawn in favor of the non-moving party. MB/A Ins. Corp. v. Royal Indem,
Co., 426 F.3d 204, 209 (3d Cir. 2005).
To state a viable § 1983 claim, a plaintiff must allege facts showing a deprivation
of a constitutional right, privilege or immunity by a person acting under color of state
law. See Daniels v. I/W/Hams, 474 U.S. 327, 330 (1986). The named defendants are
not “persons" and are not amenable to suit. Clearly, AwaIa’s complaint is frivolous.
See Neitzke v. Vlhlliams, 490 U.S. 319, 325 (1989); Deutsch v. United States, 67 F.3d
1080, 1083 (3d Cir. 1995).
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Case 1:06-cv—00012-KAJ Document 5 Filed 03/17/2006 Page 4 of 4
Awala has no viable cause of action. Accordingly, his motion for summary
judgment (D.I. 4) is denied, and the complaint is dismissed as frivolous pursuant to 28
U.S.C. § 1915(e)(2)(B) and § ‘I915A(b)(1).
V. CONCLUSION
IT IS HEREBY ORDERED that:
1. The motion to reconsider (D.|. 4) is DENIED.
2. The motion for summary judgment (D.l. 4) is DENIED.
3. The complaint is DISMISSED WITHOUT PREJUDICE for failure to timely
pay the $250 filing fee in violation of the Court’s January 19, 2006, order, and as
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1).
4. For the reasons set forth in this memorandum order, the Court discerns
no good-faith basis for an appeal. See 28 U.S.C. § ‘l915(a)(3). , j
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UNI . E STATES DISTRIO JUDGE
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\/Wlmington, Delaware
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