Ward v. Evans

Filing 21

ORDER Denying Petitioner's Fourth 18 Motion to Proceed IFP; ORDER Clarifying due Date for Payment of the $5.00 Filing Fee; Deadline for Payment of Filing Fee: No Later than Fourteen (14) Days after the Date of Service of this Order; ORDER Informing Petitioner that Dismissal will Result if the Filing Fee is not Paid signed by Judge Oliver W. Wanger on 08/20/2010. Filing Fee Deadline: 9/7/2010. (Flores, E)

(HC) Ward v. Evans

Doc. 21

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UNITED STATES DISTRICT COURT
7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 v. 13 ACTING WARDEN M. C. EVANS, 14 Respondent. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the Court is Petitioner's "Fourth" CRAIG ALLEN WARD, Petitioner, ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv--0633-OWW-SKO-HC ORDER DENYING PETITIONER'S "FOURTH" MOTION TO PROCEED IN FORMA PAUPERIS (DOC. 18) ORDER CLARIFYING DUE DATE FOR PAYMENT OF THE $5.00 FILING FEE Deadline for Payment of Filing Fee: NO LATER THAN FOURTEEN (14) DAYS AFTER THE DATE OF SERVICE OF THIS ORDER ORDER INFORMING PETITIONER THAT DISMISSAL WILL RESULT IF THE FILING FEE IS NOT PAID

motion to proceed in forma pauperis (doc. 18), filed on July 2, 2010. I. Background The petition was transferred to this Court on April 12, 2010, from the District of Northern California, action no. CV 10662-JF-(PR) (doc. 9), with an application to proceed in forma 1
Dockets.Justia.com

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pauperis (doc. 5) pending at the time of the transfer. Petitioner filed another motion to proceed in forma pauperis on April 15, 2010 (doc. 11), which was denied by this Court by order filed on May 5, 1020, because the documentation attached to Petitioner's application demonstrated that Petitioner was able to afford the costs of the action. (Doc. 15.) The order was served by mail on Petitioner on May 5, 2010. It specifically stated: Petitioner is ORDERED to pay the five filing fee within thirty (30) days of of this order. Failure to follow this in a recommendation that the Petition pursuant to Local Rule 11-110. (Id.) By order filed May 24, 2010 (doc. 19), the Court denied a renewed motion to proceed in forma pauperis (doc. 16) that had been filed on May 17, 2010, and reminded Petitioner that the filing fee was due to be paid on June 8, 2010. When the filing dollar ($5.00) the date of service order may result be dismissed

fee was not paid, findings and recommendations were filed by the Magistrate Judge to dismiss the petition. It then was discovered that the Clerk failed to serve on Petitioner the order denying Petitioner's renewed motion. The

findings and recommendations were vacated, and the clerk served on Petitioner the order denying the renewed motion to proceed in forma pauperis on July 28, 2010. II. Clarification of Due Date for Filing Fee

The order vacating the findings and recommendations directed that Petitioner be served with the order denying Petitioner's renewed motion. The order denying Petitioner's renewed motion in

turn reminded Petitioner that pursuant to the Court's previous order of May 5, 2010 (doc. 15: 21-22), the deadline for payment 2

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of the filing fee was thirty days after service of the Court's order of May 5. The docket reflects that the order of May 5,

2010, was served on Petitioner at the address listed as Petitioner's on the docket, and the order was not returned in the mail. Independently of any clerical error, Petitioner failed to pay the filing fee or seek an extension of time within the thirty-day period after May 5, 2010. Petitioner did not pay the

filing fee, and Petitioner's payment of the filing fee is thus long overdue. However, in light of foregoing history, the Court CLARIFIES its previous orders and INFORMS Petitioner that unless the filing fee is paid no later than fourteen (14) days after the date of service of this order, the action will be dismissed. III. "Fourth" Motion to Proceed in Forma Pauperis

In a motion filed on July 2, 2010, Petitioner again asserts that a case in the Northern District, case C-10-0659-WHA (PR), was transferred here and assigned case number 1:10 cv 00633-OWWSKO, the number of the present proceeding. Petitioner asserts

that in that case, an application to proceed in forma pauperis was granted in the Northern District. Attached to the motion is

an order of transfer in Northern District case number C-10-0662RS-(PR), which effects the transfer of that action to this Court, where it was given the case number of the matter before the Court, namely, 1:10-cv-00633-OWW-SKO-HC. (Doc. 18 pp. 13-14.) Also attached to the renewed motion is an order in the other Northern District case, case number C-10-659-WHA-(PR), granting leave to proceed in forma pauperis. (Doc. 18, 13.) That order was 3

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dated May 5, 2010. It thus appears that Petitioner has submitted an order from a different proceeding in the Northern District--i.e., one which did not become the present proceeding upon transfer--in which a court exercised its discretion to grant an application to proceed in forma pauperis. Title 28 U.S.C. § 1915(a)(1) provides that any court of the United States may authorize the commencement, prosecution of defense of any civil or criminal suit, action, proceeding, or any appeal therein, without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets the person possesses and that the person is unable to pay such fees or give security therefor. Id.; Floyd v. United

States Postal Service, 105 F.3d 274, 275-77 (6th Cir. 1997), modified on other grounds in Callihan v. Schneider, 178 F.3d 800, 801 (6th Cir. 1999). Section 1915(a) does not require that the

litigant be destitute; rather, a party must not be required to choose either to abandon a potentially meritorious claim or to forego the necessities of life. Potnick v. Eastern State

Hospital, 701 F.2d 243, 244 (2nd Cir. 1983) (citing Adkins v. E.I. DuPont de Nemours & Co., Inc., 335 U.S. 331, 339, (1948)). In the motion before the Court, Petitioner has not demonstrated that he is required to choose to abandon a potentially meritorious claim or forego the necessities of life. Petitioner has not shown that he is unable to afford the costs of this action. If Petitioner's motion is considered a motion for reconsideration pursuant to Federal Rule of Civil Procedure, Rule 4

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59(e), see, United States v. Westlands Water Dist., 134 F.Supp.2d 1111, 1130 (E.D. Cal. 2001), then Petitioner has not demonstrated grounds sufficient to warrant relief pursuant to Fed. R. Civ. P. 59(e), which is appropriate when there are highly unusual circumstances, the district court is presented with newly discovered evidence, the district court committed clear error, or a change in controlling law intervenes. School Dist. No. 1J,

Multnomah County, Oregon v. AcandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). Federal Rule of Civil Procedure 60(b), which governs the reconsideration of final orders of the district court, permits a district court to relieve a party from a final order or judgment on grounds including but not limited to 1) mistake, inadvertence, surprise, or excusable neglect; 2) newly discovered evidence; 3) fraud, misrepresentation, or misconduct by an opposing party; or 4) any other reason justifying relief from the operation of the judgment. Fed. R. Civ. P. 60(b) generally applies to habeas See, Gonzalez v. Crosby, 545 U.S. 524, 530-

corpus proceedings. 36 (2005).

Relief may be granted in the event of an intervening

change in controlling law, the availability of new evidence or an expanded factual record, or the need to correct a clear error or prevent manifest injustice. Kern-Tulare Water Dist. v. City of

Bakersfield, 634 F.Supp. 656, 665 (E.D.Cal. 1986), aff'd in part and rev'd in part on other grounds, 828 F.2d 514 (9th Cir. 1987). A party seeking reconsideration must show more than a disagreement with the Court's decision and offer more than a restatement of the cases and arguments considered by the Court before rendering the original decision. 5 United States v.

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Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001). Motions to reconsider pursuant to Rule 60(b)(1) are committed to the discretion of the trial court, Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 1983). If Petitioner's renewed motion is considered to be an application pursuant to Fed. R. Civ. P. 60(b), then Petitioner has failed to demonstrate any grounds for relief. Further, Petitioner has failed to comply with Local Rule 230(j), which governs the procedures to be followed with respect to motions for reconsideration. IV. Disposition

Accordingly, it is ORDERED that 1) Petitioner's "Fourth" motion to proceed in forma pauperis is DENIED; and 2) The filing fee IS DUE no later than fourteen (14) days after the date of service of this order; and 3) Petitioner IS INFORMED that if the filing fee is not timely paid, then the action WILL BE DISMISSED.IT IS SO ORDERED. Dated: August 20, 2010 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE

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