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Gordon v. Fisher

United States District Court, S.D. Mississippi, Northern Division

April 19, 2017

MICHAEL LEE GORDON PLAINTIFF
v.
MARSHALL FISHER, ET AL. DEFENDANTS

          ORDER

          DANIEL P. JORDAN III UNITED STATES DISTRICT JUDGE

         This pro se prisoner action is before the Court on Plaintiff Michael Lee Gordon's motion to reopen the case [56] and motion to object to the Report and Recommendation [57]. Defendants Jose Santana and Christopher Zepher responded in opposition [59]. Plaintiff declined to file a reply, and the time to do so has passed. The Court, having considered the submissions of the parties along with the pertinent authorities, finds that Plaintiff's motion to reopen the case [56] should be granted to the extent that the arguments raised in his motion to object [57] have been considered and rejected. The Order [55] adopting the Report and Recommendation stands.

         I. Facts and Procedural History

         Gordon, a federal inmate, filed this § 1983 action in August 2015, against multiple defendants, challenging the conditions of his confinement during his temporary housing at Central Mississippi Correctional Facility (“CMCF”) in Pearl, Mississippi. Compl. [1]. Magistrate Judge F. Keith Ball granted Gordon's motion to proceed in forma pauperis (“ifp”). Order [7]. Defendants Jose Santana and Christopher Zepher thereafter moved to revoke Gordon's ifp status pursuant 28 U.S.C. § 1915(g), which provides:

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 physical injury.

         Gordon did not respond to the motion, and Judge Ball recommended revoking ifp status. R&R [54]. In addition to addressing Gordon's prior filings, Judge Ball also rejected any suggestion that Gordon was in imminent danger of serious physical injury. Id.

         Gordon did not file an Objection, and the Court adopted the unopposed Report and Recommendation, revoking ifp status and giving Gordon thirty days to pay the filing fee. Order [55]. Rather than pay the fee, Gordon asks the Court to reopen the case [56] and allow him to object to the Report and Recommendation [57]. Defendants Santana and Zepher oppose these requests [59].

         II. Analysis

         Gordon's filings present two issues: (1) has he presented grounds for relief pursuant to Federal Rule of Civil Procedure 60(b) and (2) has he established “imminent danger” pursuant to § 1915(g).

         Under Rule 60(b), the Court has discretion to relieve a party from an order under six circumstances:

(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct ...

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