Johnson v. Yulit et al

Filing 14

ORDER GRANTING Plaintiff's Motion for Reconsideration 12 ; ORDER for Clerk to REOPEN Case, signed by Magistrate Judge Gary S. Austin on 9/18/12. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT D. JOHNSON,

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1:12-cv-00947-GSA-PC

Plaintiff,

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vs.

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ORDER GRANTING PLAINTIFF'S MOTION
FOR RECONSIDERATION
(Doc. 12.)

DR. YULIT, et al.,

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ORDER FOR CLERK TO REOPEN CASE

Defendants.
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I.

BACKGROUND

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Robert D. Johnson (“Plaintiff”), a prisoner proceeding pro se, filed this civil rights action on

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June 1, 2012, at the United States District Court for the Northern District of California. (Doc. 1.)

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On June 6, 2012, the case was transferred to the Eastern District of California. (Doc. 4.)

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On June 19, 2012, Plaintiff consented to Magistrate Judge jurisdiction in this action, and no

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other parties have made an appearance. (Doc. 9.) Therefore, pursuant to Appendix A(k)(4) of the

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Local Rules of the Eastern District of California, the undersigned shall conduct any and all

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proceedings in the case until such time as reassignment to a District Judge is required. Local Rule

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Appendix A(k)(3).

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On August 23, 2012, the undersigned dismissed this action without prejudice, based on

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Plaintiff's failure to comply with the Court's order of June 14, 2012 requiring him to submit a new

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application to proceed in forma pauperis or pay the filing fee for this action. (Doc. 10.) On

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September 13, 2012, Plaintiff filed a motion for reconsideration of the order dismissing this action.

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(Doc. 12.)

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II.

MOTION FOR RECONSIDERATION

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Rule 60(b)(6) allows the Court to relieve a party from an order for any reason that justifies

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relief. Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent manifest injustice
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and is to be utilized only where extraordinary circumstances . . .” exist. Harvest v. Castro, 531 F.3d

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737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted). The moving party “must

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demonstrate both injury and circumstances beyond his control . . . .” Id. (internal quotation marks

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and citation omitted). In seeking reconsideration of an order, Local Rule 230(k) requires Plaintiff

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to show “what new or different facts or circumstances are claimed to exist which did not exist or

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were not shown upon such prior motion, or what other grounds exist for the motion.”

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“A motion for reconsideration should not be granted, absent highly unusual circumstances,

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unless the district court is presented with newly discovered evidence, committed clear error, or if

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there is an intervening change in the controlling law,” Marlyn Nutraceuticals, Inc. v. Mucos Pharma

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GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted,

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and “[a] party seeking reconsideration must show more than a disagreement with the Court’s

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decision, and recapitulation . . . ” of that which was already considered by the Court in rendering its

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decision,” U.S. v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001).

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Plaintiff argues that his case should not have been dismissed for failure to comply with the

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Court’s order to submit an application to proceed in forma pauperis (“application”), because he

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submitted two applications in this action, on May 24, 2012 and July 12, 2012. Plaintiff asserts that

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on May 24, 2012, he submitted an application with his Complaint. (Motion, Doc. 12 at 1.) Plaintiff

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asserts that on July 12, 2012, he submitted another application in response to a request from the

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Court. Id. In support of his motion for reconsideration, Plaintiff has submitted documentation of

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his efforts to obtain the trust account information required by the Court as part of the application

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process. (Exhibits to Motion.) Also, Plaintiff submitted a new, completed application to proceed

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in forma pauperis on September 13, 2012, along with his motion for reconsideration. (Doc. 13.)

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II.

DISCUSSION

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A review of the Court’s docket shows that before the Court dismissed this case on August

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23, 2012, Plaintiff had filed only one application to proceed in forma pauperis in this action, on June

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1, 2012 at the Northern District of California where this case commenced. (Doc. 2.) The application

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was deficient, and on June 1, 2012, the Northern District sent Plaintiff a notice requiring him to file

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a new application within thirty days. (Doc. 3.) There is no evidence on the docket that Plaintiff
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submitted a new application in response to the Northern District’s notice. (Court Docket.) On June

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6, 2012, Plaintiff’s case was transferred to the Eastern District of California. (Doc. 4.) On June 14,

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2012, the Eastern District issued an order requiring Plaintiff to submit another application, or pay

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the filing fee for this action, within thirty days. (Doc. 8.) Plaintiff did not submit an application, pay

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the filing fee, or otherwise respond to the order, and on August 23, 2012, the case was dismissed for

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Plaintiff’s failure to comply with the order. (Doc. 10.)

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There is no record on the docket that Plaintiff ever submitted an application to the Eastern

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District. Nevertheless, Plaintiff appears certain that he submitted an application in July 2012 in

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response to the Court’s order of June 14, 2012. Plaintiff’s evidence shows that in July 2012 he

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requested documentation from the prison which was required by the Court’s order. Moreover,

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Plaintiff has now submitted a new application to proceed in forma pauperis, which will enable this

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case to proceed. The Court finds that Plaintiff has sufficiently demonstrated that he made a good

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faith attempt to comply with the Court’s order of June 14, 2012, but for unknown reasons the Court

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did not receive his application. Therefore, Plaintiff’s motion for reconsideration shall be granted and

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this case shall be reopened.

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III.

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CONCLUSION AND ORDER
The Court finds that Plaintiff has shown good cause for the Court to grant his motion for

reconsideration, and this case shall be reopened.

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Therefore, based on the foregoing, it is HEREBY ORDERED that:

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1.

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Plaintiff’s motion for reconsideration, filed on September 13, 2012, is GRANTED;
and

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The Clerk is DIRECTED to reopen this case.

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IT IS SO ORDERED.
Dated:
6i0kij

September 18, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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