Free Memorandum and Order - District Court of Delaware - Delaware

Case 1:05-cv—00917-KAJ Document 5 Filed 03/16/2006 Page1 of4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
GBEKE MICHAEL AWALA, )
Plaintiff, g
v. g Civ. No. 05-917-KAJ
U.S. MARSHAL ANDERSON, et al., g
Defendants. g
MEMORANDUM ORDER
I. INTRODUCTION
Plaintiff Gbeke Michael Awala ("Awala"), is a pro se litigant who is currently
incarcerated at the Federal Detention Center in Philadelphia, Pennsylvania. At the time
he filed his complaint (D.I. 1), 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 filed at least three actions that were dismissed as frivolous,
malicious, or for failure to state a claim. (D.|. 2.) On January 20, 2006, he was
ordered to pay the $250 filing fee within thirty days or the complaint would be
dismissed. ld. Rather than pay the filing fee, Awala moves for reconsideration ofthe
"three strikes" order and also moves for summaryjudgment. (D.I. 3, 4.)
Il. STANDARD OF REVIEW
The standard for obtaining relief under Rule 59(e) is difficult 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. Zlofnicki, 779 F.2d 906, 909
(3d Cir. 1985). A motion for reconsideration may be granted if the moving party shows:

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(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. lVlax's Seafood Café v. Qulnleros, 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 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, lnc. v. Blocker,
735 F.Supp. 1239, 1240 (D.DeI.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.
III. DISCUSSION
Awala brings an excessive force claim against the defendants. The alleged
excessive force occurred on December 22, 2005, when Awala was transported from the
Salem County Correctional Facility in Woodstown, New Jersey to the U.S. District Court
in \/\Hlmington, Delaware. Awala is now housed at the Federal Detention Center in
Philadelphia, Pennsylvania. Awala argues that he should be permitted to proceed ln
forma pauperls because he is in "lmminent danger of serious physical injury." He
argues that according to medical records he "received treatment on numerous parts of
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his human body, whether visible or invisible, medication where prescribed for treatment,
and those medication cannot be recommended ifthere was no imminent need for
treatment upon which the plaintiffs health was in danger." (D.I. 3, para. (b).) Awala
argues that the foregoing creates an exception to the "three strikes" rule, and as a result
he should be allowed to proceed in forma pauperis.
A plaintiff may not tile another civil action in forma pauperis while incarcerated
unless he is in "imminent danger of serious physical injury" at the time ofthe filing of his
complaint. 28 U.S.C. § 1915(g); Abdul-Akbar v. Il/lcKe!vie, 239 F.3d 307, 311 (3d Cir.
2001). This means that "imminent danger" is measured at the time the complaint is
filed, not at the time ofthe alleged incident. Abdul-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 l issued my order. Rather,
he appears to argue there is a need to correct a clear error of law or fact. The alleged
excessive force occurred on December 22, 2005, when Awala was being transferred
from one facility to another and then returned to the Salem County Correctional Facility
in Woodstown, New Jersey. Awala tiled his complaint on December 23, 2005. The
allegations in the complaint do not indicate that Awala was in "imminent danger" at the
time he tiled the complaint. Indeed, the alleged "imminent danger" occurred during the
December 22, 2005, transport, not on December 23, 2005, when the complaint was
Hled.
Awala simply does not agree with the order I entered on January 20, 2006. The
law has not changed and there is no new evidence. |\/lost important, after reviewing the
complaint and AwaIa’s pending motion, I find there is no need to correct a clear error of
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law or fact or to prevent manifest injustice. Indeed, I took great care to review the
allegations in the complaint. Awala has not demonstrated any ofthe grounds
necessary to warrant reconsideration, and therefore, his motion will be denied.
IV. MOTION FOR SUMMARY JUDGMENT
Awala also filed a motion for summary judgment. (D.l. 4.) The motion is
frivolous and does not merit comment or consideration by the Court. Therefore, I will
deny the motion.
V. CONCLUSION
IT IS HEREBY ORDERED that:
1. The motion for reconsideration (D.I. 3) is DENIED.
2. The motion for summary judgment (D.l. 4) is DENIED.
3. Awala is given an additional thirty (30) days from the date of this order to
pay the $250.00 tiling fee. lf he does not pay the filing fee within that time, the
complaint shall be dismissed pursuant to 28 U.S.C. § ‘l915(g).
\_ I/’ ////3-iI
March , 2006 V
Wilmington, Delaware
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