United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING MOTION “TO
REINSTATE MY RIGHTS TO FILE A FEDERAL LAW SUIT PRO
MATTER is before the Court on the motion “To Reinstate
my Rights to File a Federal Law Suit Pro Se” filed by
Plaintiff Daniel O'Neill on April 3, 2017 (Doc. 11)
(“Motion to Reinstate”). The Court will deny
O'Neill's Motion to Reinstate.
Court entered its Memorandum Opinion and Order and a Judgment
dismissing O'Neill's Complaint for failure to state a
claim on which relief can be granted on July 20, 2016. (Doc.
9, 10). O'Neill filed his Motion to Reinstate on April 3,
2017. (Doc. 11). Although his Motion to Reconsider is titled
“To Reinstate my Rights to File a Federal Law Suit Pro
Se, ” the relief he seeks is the removal of three
strikes against him under 28 U.S.C. § 1915(g). (Doc. 11
at 1, 3).
argues that he has been given “two strikes against him
for the same case. This is cruel and not justified by the
high court.” (Doc. 11 at 3). O'Neill is correct
that he has received multiple strikes for filing multiple
cases alleging the same claims. However, the Court's
imposition of multiple strikes for the same claims is proper.
O'Neill has filed the same claims against the same
parties and the Court has dismissed those claims for failure
to state a claim on which relief can be granted in this and
two prior cases, O'Neill v. Trujillo, No. CV
11-1044 BB/KBM (Doc. 13) and O'Neill v. New Mexico
Attorney General Gary King, No. CV15-1030 RB/WPL (Doc.
recognized that a litigant whose filing fees and court costs
are assumed by the public, unlike a paying litigant, lacks
any financial incentive to refrain from filing frivolous,
malicious, or repetitive lawsuits. Neitzke v.
Williams, 490 U.S. 319, 324 (1989). Because prisoner
suits represent a disproportionate share of federal filings,
Congress chose to enact reforms designed to filter out
deficient claims. Jones v. Bock, 549 U.S. 199,
202-204 (2007). Those reforms include the three-strike rule
of the Prison Litigation Reform Act (“PLRA”), 28
U.S.C. § 1915(g). The three-strike rule of §
“In no event shall a prisoner bring a civil action or
appeal a judgment in a civil action or proceeding under this
section if the prisoner has, on 3 or more prior occasions,
while incarcerated or detained in any facility, brought an
action or appeal in a court of the United States that was
dismissed on the grounds that it is frivolous, malicious, or
fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious
Prison Litigation Reform Act (PLRA) is intended to curb
repetitive and abusive filing of meritless claims. Each of
the dismissals of O'Neill's claims constitutes a
proper “strike” for purposes of the “three
strikes” rule of the PLRA. 28 U.S.C. § 1915(g).
Therefore, the Court will deny O'Neill's request to
remove the three strikes against him.
O'Neill does not request that the Court reconsider its
substantive rulings in the July 20, 2016 Memorandum Opinion
and Order, to the extent that his arguments could be
construed as a request for reconsideration under Fed.R.Civ.P.
59(e) or 60(b), the Court will also deny that request. His
Motion to Reinstate would be untimely under Rule 59(e) and
fails to present any grounds justifying relief under either
Rule 59(e) or Rule 60(b).
warranting a motion to reconsider under Rule 59(e) include
(1) an intervening change in the controlling law, (2) new
evidence previously unavailable, and (3) the need to correct
clear error or prevent manifest injustice. See Brumark
Corp. v. Samson Resources Corp., 57 F.3d 941, 948 (10th
Cir.1995). A motion for reconsideration is proper where the
court has clearly misapprehended the facts, a party's
position, or the controlling law, but is not appropriate to
revisit issues already addressed in prior filings. See
Van Skiver v. United States, 952 F.2d 1241, 1243 (10th
Cir.1991); Servants of Paraclete v. Does, 204 F.3d
1005, 1012 (10th Cir. 2000).
Motion to Reinstate, O'Neill seeks to reargue matters
that he previously presented. (Doc. 11 at 2-3). He relies on
older authority that predates Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). O'Neill fails to
show any intervening change in controlling law, new evidence,
or a need to correct clear error. Brumark Corp. v. Samson
Resources Corp., 57 F.3d at 948. Nor does he establish
any of the six grounds justifying relief under Rule
60(b)(1)-(6). If his Motion to Reinstate can be construed as
a Rule 59(e) or Rule 60(b) motion to reconsider, it is
IS ORDERED that the Motion to Reinstate My Rights to
File a Federal Law Suit Pro Se (Doc. 11) is
 The Court has not imposed any
restrictions on O'Neill's right to file as a pro se
litigant but, instead, has imposed three strikes under
Section 1915(g) restricting his right to proceed in forma
pauperis unless he is ...