Gonzales v. Yates

Filing 11

ORDER signed by Judge Oliver W. Wanger on 9/16/06 GRANTING 10 MOTION for RECONSIDERATION of 7 Order Adopting Findings and Recommendations, Order Dismissing Case; DIRECTING Clerk of Court to send Plaintiff an IFP Application Form and DIRECTING Plaintiff to submit an IFP Application and certified copy of trust account statement or pay $250.00 filing fee. Filing due by 10/23/2006. Case reopened. (Lundstrom, T)

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(PC) Gonzales v. Yates Doc. 11 Case 1:05-cv-01070-LJO-DLB Document 11 Filed 09/18/2006 Page 1 of 2 1 2 3 4 5 6 7 8 9 10 11 12 J. YATES, et.al. 13 Defendants. 14 15 Plaintiff is a state prisoner proceeding pro se in this civil rights action pursuant to 42 16 U.S.C. 1983. Plaintiff filed the complaint on August 23, 2005. On September 16, 2005, the 17 Magistrate Judge ordered plaintiff to either submit an application to proceed in forma pauperis or 18 to pay the $250.00 filing fee within 30 days. When plaintiff failed to do so, the Magistrate Judge 19 recommended dismissal of the action based on plaintiff's failure to obey the Court's September 20 16, 2005 order. The recommendation informed plaintiff that he could file objections within 21 thirty (30) days. Plaintiff did not file objections to the recommendation and the undersigned 22 adopted the recommendation on December 27, 2005 and judgment was entered the same day. 23 On January 5, 2006, plaintiff filed a motion for reconsideration of the December 27, 2005 24 order. Plaintiff states that he was in administrative segregation during the time period described 25 above and therefore was unable to file the in forma pauperis application or objections to the 26 recommendation. Plaintiff requests reconsideration of the order dismissing the case based on 27 these circumstances which he alleges were beyond his control. 28 1 Dockets.Justia.com UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRANK GONZALES, Plaintiff, v. CV F 05-1070 OWW DLB P ORDER GRANTING PLAINTIFF'S MOTION TO RECONSIDER DECEMBER 19, 2005 ORDER [Doc. 10] / Case 1:05-cv-01070-LJO-DLB Document 11 Filed 09/18/2006 Page 2 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Federal Rule of Civil Procedure 60(b)(1) permits the court to relieve a party from a final judgment, order or proceeding based on mistake, inadvertence, surprise or excusable neglect. Fed.R.Civ.Proc. 60(b)(1). It appears that plaintiff failed to file his application to proceed in forma pauperis based on circumstances beyond his control. Given plaintiff's pro per status, such mistake warrants reconsideration of the Court's order dismissing the case. Plaintiff will be given one final opportunity to either pay the $250.00 fee or file a completed application to proceed in forma pauperis with a certified copy of his prison trust account statement for the six-month period immediately preceding the filing of his complaint. In accordance with the above, IT IS HEREBY ORDERED that: 1. The order of dismissal and the judgment, dated December 27, 2005 are VACATED; 2. The Clerk of the Court is directed to send to plaintiff the form application to proceed in forma pauperis; 3. Within thirty days of service of this order, plaintiff shall submit a completed application to proceed in forma pauperis and a certified copy of his trust account statement for the six-month period immediately proceeding the filing of the complaint, or in the alternative, to pay the $250.00 filing fee for this action. 4. 5. Plaintiff's failure to comply with this order will result in dismissal of this action. This case is referred back to the Magistrate Judge for further proceedings. IT IS SO ORDERED. Dated: September 16, 2006 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 2

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