Johnson v. California Department of Correction and Rehabilitation et al

Filing 8

ORDER ADMINISTRATIVELY CLOSING Case Number 1:11-cv-00684-AWI-SKO (PC) as a Later Filed, Duplicate Case, and REOPENING CASE Number 1:10-cv-00582-AWI-GBC (PC) signed by Chief Judge Anthony W. Ishii on 9/11/2011. The first amended complaint filed in 1:11-cv-00684 shall be re-filed in 1:11-cv-00582 as the operative complaint. The filing fee paid in case 1:11-cv-00684 shall relate back and be applied to case 1:11-cv-00582. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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GARRISON S. JOHNSON,

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CASE NO. 1:10-cv-00582-AWI-GBC (PC)

Plaintiff,

CASE NO. 1:11-cv-00684-AWI-SKO (PC)

v.
ORDER GRANTING PLAINTIFF’S MOTION
FOR RECONSIDERATION, ORDER
REOPENING CASE, AND ORDER
ADMINISTRATIVELY CLOSING CASE
NUMBER 1:11-cv-00684-AWI-SKO (PC)

CALIFORNIA DEPARTMENT
OF CORRECTION AND
REHABILITATION, et al.,
Defendant.
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Order on Motion for Reconsideration In Case No. 1:10-cv-582-AWI-GBC (PC)
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Plaintiff Garrison S. Johnson (“Plaintiff”) is a state prisoner proceeding pro se with this civil
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rights action pursuant to 42 U.S.C. § 1983.

The Court denied Plaintiff’s application to proceed in

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forma pauperis pursuant to 28 U.S.C. § 1915 on April 16, 2010. (Doc. 6). On May 10, 2010,
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Plaintiff filed a motion for reconsideration of the order denied Plaintiff’s application to proceed in
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forma pauperis. (Doc. 8). On December 13, 2010, the Court denied Plaintiff’s motion for
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reconsideration and required Plaintiff to pay the filing fee within thirty days. (Doc. 9). On February
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17, 2011, Plaintiff filed a second motion for reconsideration. (Doc. 13).
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Federal Rule of Civil Procedure 60(b)(6) allows the Court to relieve a party from an order
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for any reason that justifies relief. Rule 60(b)(6) “is to be used sparingly as an equitable remedy to
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prevent manifest injustice and is to be utilized only where extraordinary circumstances . . .” exist.
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Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation
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omitted). The moving party “must demonstrate both injury and circumstances beyond his control

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. . . .” Id. (internal quotation marks and citation omitted). Further, Local Rule 230(j) requires, in

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relevant part, that Plaintiff show “what new or different facts or circumstances are claimed to exist

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which did not exist or were not shown upon such prior motion, or what other grounds exist for the

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motion,” and “why the facts or circumstances were not shown at the time of the prior motion.”

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In support of Plaintiff’s second motion for reconsideration, Plaintiff argues that he directed

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the prison trust account office to pay the filing fee from his funds, however, payment was not

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delivered. Plaintiff includes a declaration that he instructed the prison trust account office to pay,

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and attaches a document that he identifies as his trust account statement. The attached trust account

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statement indicates a withdrawal of $350 on December 23, 2010. Plaintiff requests that the Court

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reopen the case so that he can pay the filing fee and proceed with the case.

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While this motion for reconsideration was pending, Plaintiff re-filed this case on April 29,

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2011, in Johnson v. California Department of Correction and Rehabilitation, et al.,

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1:11-cv-684-AWI-SKO and paid the filing fee. The complaint in 1:11-cv-00684-AWI-SKO is

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identical to the complaint in this case (1:10-cv-582-AWI-GBC). Considering Plaintiff’s motion for

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reconsideration and the attached financial statement, it appears that Plaintiff attempted to comply

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with the Court’s order to pay the filing fee. The financial statement, combined with Plaintiff’s

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refiling this case with a filing fee, demonstrates a desire to pursue this case and to pay the required

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filing fees. Under these circumstances, the Court believes that reconsideration is appropriate.

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Because Plaintiff paid the $350 filing fee on April 29, 2011, albeit through a different case

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number, the Court will not require Plaintiff to file additional fees. Instead, the Court will re-open

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this Case 1:10-cv-582-AWI-GBC, close case 1:11-cv-684-AWI-SKO because it is identical to Case

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1:10-cv-582-AWI-GBC, and order that the filing fee paid in Case Number 1:11-cv-684-AWI-SKO

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be applied to Case 1:10-cv-582-AWI-GBC.

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Additionally, in Case 1:11-cv-684-AWI-SKO , Plaintiff filed a first amended complaint as

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a matter of course. The Court will direct that this first amended complaint to be refiled in Case 1:10-

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cv-582-AWI-GBC. This amended complaint will serve as the operative complaint going forward.

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Accordingly, IT IS HEREBY ORDERED that:
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Plaintiff’s motion for reconsideration in Case 1:10-cv-582-AWI -GBC (PC) (Doc. No. 8)
is GRANTED;

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2.

Case number 1:10-cv-582-AWI-GBC (PC) is REOPENED;

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3.

Case number 1:11-cv-684-AWI-SKO (PC) shall be administratively CLOSED as a later-

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filed, duplicate case;
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The clerk shall refile the first amended complaint (Document No. 6) from Case

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1:11-cv-684-AWI-SKO (PC) into Case 1:10-cv-582 AWI GBC (PC), and that first amended

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complaint shall be the operative complaint in Case 1:10-cv-582 AWI GBC (PC);

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5.

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The filing fee paid in case 1:11-cv-684-AWI-SKO (PC) shall relate back and be applied to
Case 1:10-cv-582 AWI GBC (PC); and

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Case 1:10-cv-582-AWI-GBC (PC) is referred to Magistrate Judge Cohn for further
proceedings.

IT IS SO ORDERED.

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Dated:
0m8i78

September 11, 2011
CHIEF UNITED STATES DISTRICT JUDGE

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