Stoller v. Bank of New York Mellon Trust Company et al

Filing 72

ORDER denying 70 Plaintiff's Motion for Reconsideration ; denying 71 Plaintiff's Motion for Leave to Proceed in forma pauperis. The docket shall reflect that the Court certifies, pursuant to 28:1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of this decision would not be taken in good faith. Signed by Judge G Murray Snow on 1/3/12.(TLJ)

1

WO

SC

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
)
)
)
Plaintiff,
)
)
vs.
)
Bank of New York Mellon Trust, et al., )
)
)
Defendants.
)
Christopher Stoller,
9
10
11
12
13

No. CV 11-01105-PHX-GMS-JRI
ORDER

14

On November 7, 2011, the Court dismissed this action without prejudice after Plaintiff

15

failed to either pay the $350.00 filing fee or to file an Application for Leave to Proceed In

16

Forma Pauperis using the court-approved form for prisoners. (Doc. 63.) On November 16,

17

2011, Plaintiff filed a motion for reconsideration and a motion to proceed in forma pauperis.

18

(Doc. 70, 71.)

19

Generally, motions to reconsider are appropriate only if the Court “(1) is presented

20

with newly discovered evidence, (2) committed clear error or the initial decision was

21

manifestly unjust, or (3) if there is an intervening change in controlling law.” School Dist.

22

No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). A

23

motion for reconsideration should not be used to ask a court “to rethink what the court had

24

already thought through, rightly or wrongly.” Above the Belt, Inc. v. Mel Bohannon

25

Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)). Rather, such arguments should be

26

directed to the court of appeals. Sullivan v. Faras-RLS Group, Ltd., 795 F. Supp. 305, 309

27

(D. Ariz. 1992).

28

1

In its July 25, 2011 Order, the Court informed Plaintiff of the following:

2

When bringing an action, a prisoner must either pay the $350.00 filing
fee in a lump sum or, if granted the privilege of proceeding in forma pauperis,
pay the fee incrementally as set forth in 28 U.S.C. § 1915(b)(1). An
application to proceed in forma pauperis requires an affidavit of indigence and
a certified copy of the inmate’s trust account statement for the six months
preceding the filing of the Complaint. 28 U.S.C. § 1915(a)(2). An inmate
must submit statements from each institution where he was confined during the
six-month period. Id. To assist prisoners in meeting these requirements, the
Court requires use of a form application. LRCiv 3.4(a).

3
4
5
6
7
8
9
10

If a prisoner is granted leave to proceed in forma pauperis, the Court
will assess an initial partial filing fee of 20% of either the average monthly
deposits or the average monthly balance in Plaintiff’s account, whichever is
greater. 28 U.S.C. § 1915(b)(1). An initial partial filing fee will only be
collected when funds exist. 28 U.S.C. § 1915(b)(4). The balance of the fee
will be collected in monthly payments of 20% of the preceding month’s
income credited to an inmate’s account, each time the amount in the account
exceeds $10.00. 28 U.S.C. § 1915(b)(2).

11
12

(Doc. 9 at 1-2.)

13

Because Plaintiff failed to use this District’s approved form or to provide the

14

statutorily-required information, the Court denied Plaintiff’s motion to proceed in forma

15

pauperis, but granted him 30 days in which to either pay the $350.00 filing fee or file an

16

Application to Proceed In Forma Pauperis using the court-approved form. (Id.) The Court

17

explicitly informed Plaintiff that the failure to either pay the $350.00 filing fee or to file an

18

Application to Proceed In Forma Pauperis using the court-approved form would result in the

19

dismissal of this case without prejudice. (Id.)

20

Plaintiff neither paid the filing fee nor submitted the court-approved form in forma

21

pauperis application for use by inmates. Instead, on September 14, 2011, Plaintiff filed a

22

document captioned “Judicial Notice” in which he asserted that the “appropriate officer of

23

the Lake County Jail would not sign the in forma pauperis form” and jail policy prevented

24

inmates from making photocopies.1 (Doc. 52.) As the Court stated in its Order dismissing

25

this case,

26
27
28

1

Plaintiff was subsequently transferred to the Dixon Correctional Center in Dixon,
Illinois. (Doc. 67.)
-2-

1
2
3
4
5
6

Even assuming jail officials refused to provide a six month inmate account
statement or to complete the account certification, Plaintiff has failed to
complete and file his portion of this District’s approved in forma pauperis
application. Plaintiff’s contention that jail officials refuse to allow inmates to
make photocopies is not credible in light of Plaintiff’s voluminous filings in
this, and other, cases while incarcerated. Because Plaintiff has failed to pay
the filing fee or to file an Application to Proceed In Forma Pauperis on this
District’s approved form, the Court will dismiss this action without prejudice
....
(Doc. 63 at 6.)

7

Plaintiff has not alleged or shown that the Court clearly erred or that dismissal was

8

manifestly unjust. Further, he has not presented newly discovered evidence or cited an

9

intervening change in controlling law. Moreover, although Plaintiff filed another motion to

10

proceed in forma pauperis, including a partially complete court-approved in forma pauperis

11

application, Plaintiff failed to have prison officials certify the amount in his inmate account

12

or to submit an inmate trust account statement from prison officials. In short, even if the

13

Court were inclined to grant reconsideration, Plaintiff has not submitted a properly completed

14

in forma pauperis application by a prisoner. Under these circumstances, both of Plaintiff’s

15

motions will be denied.

16

IT IS ORDERED:

17

(1)

18
19

Plaintiff’s motions for reconsideration and to proceed in forma pauperis are

denied. (Doc. 70, 71.)
(2)

The docket shall reflect that the Court certifies, pursuant to 28 U.S.C.

20

§ 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of this

21

decision would not be taken in good faith.

22

DATED this 3rd day of January, 2012.

23
24
25
26
27
28

-3-