Miller v. Najera, et. al.

Filing 14

ORDER Denying Plaintiff's Motions for (1) Reconsideration of Denial of in Forma Pauperis Status 12 , (2) in Forma Pauperis 13 , signed by Magistrate Judge Michael J. Seng on 5/6/13. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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STEVEN R. MILLER,

CASE No. 1:12-cv-01288-AWI-MJS (PC)

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ORDER DENYING PLAINTIFF’S MOTIONS
FOR (1) RECONSIDERATION OF DENIAL
OF IN FORMA PAUPERIS STATUS (2) IN
FORMA PAUPERIS STATUS

Plaintiff,

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v.

(ECF Nos. 12, 13)

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ALBERT NAJERA, et al.,

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Defendants.
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/

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I.

PROCEDURAL BACKGROUND

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Plaintiff Steven R. Miller is a federal prisoner proceeding pro se in this civil rights
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action filed on July 30, 2012 pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown
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Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). (ECF No. 1.)
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Plaintiff filed a Motion to Proceed In Forma Pauperis (“IFP”). (ECF No. 2.)
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However, on August 13, 2012, prior to action on his IFP Motion, a relative of Plaintiff
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paid the filing fee in full. Accordingly, the Court denied the IFP Motion as moot on
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March 29, 2013. (ECF No. 11.)
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Pending before the Court are Plaintiff’s Motions filed April 26, 2013 for (1)
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Reconsideration of the March 29th Order Denying the IFP Motion (ECF No. 12), (2) IFP
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status. (ECF No. 13.)

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II.

ARGUMENT
Plaintiff claims: his grandmother paid the fee without his knowledge; his financial

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situation has changed and he now earns $30/month at his prison job rather than the

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initial $5.25/$10.50; he also receives $30/month from his grandparents; and, denial of

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IFP prejudicially deprives him of marshal’s service of process and the opportunity for

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appointed counsel.
Plaintiff again motions for IFP status under 28 U.S.C. § 1915 based upon his

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updated indigency.
Plaintiff also asserts he requires the assistance of counsel to prosecute this

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action.

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III.

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ANALYSIS
A.

MOTION FOR RECONSIDERATION
1.

Legal Standard

Federal Rule of Civil Procedure 60(b)(6) allows the Court to relieve a party from

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an order and judgment for any reason that justifies relief. Rule 60(b)(6) “is to be used

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sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only

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where extraordinary circumstances . . .” exist. Harvest v. Castro, 531 F.3d 737, 749 (9th

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Cir. 2008). The moving party “must demonstrate both injury and circumstances beyond

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his control . . . .” Id. In seeking reconsideration of an order, Local Rule 230(j) requires a

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party to identify the motion or order in issue and when it was made, and show “what

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new or different facts or circumstances are claimed to exist which did not exist or were

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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

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circumstances, unless the . . . court is presented with newly discovered evidence,

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committed clear error, or if there is an intervening change in the controlling law,” Marlyn

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Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009),

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and “[a] party seeking reconsideration must show more than a disagreement with the
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[c]ourt's decision, and recapitulation . . .” of that which was already considered by the

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court in rendering its decision. U.S. v. Westlands Water Dist., 134 F.Supp.2d 1111,

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1131 (E.D. Cal. 2001).
2.

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No Basis for Reconsideration re IFP

Plaintiff moves to proceed as an indigent notwithstanding that the filing fee for
this action has been paid in full.
Plaintiff cites no authority supporting a right to IFP status following payment of

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the Court’s filing fee. Plaintiff has no right to proceed IFP. Franklin v. Murphy, 745 F.2d

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1221, 1231 (9th Cir. 1984). This is so regardless of whether Plaintiff was aware his

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family member would pay the filing fee and his financial position would improve.
Plaintiff provides no basis for reconsideration of his IFP status. He cites to no

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error, newly discovered evidence, or other grounds supporting reconsideration

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regarding his IFP status.
3.

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No Basis for Reconsideration re Appointment of Counsel

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Plaintiff’s Motion for Reconsideration also fails to the extent construed as

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seeking reconsideration of the Court’s September 7, 2012 Order denying his Motion for

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appointment of Counsel. The Court denied the Motion on grounds Plaintiff failed to

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show the requisite exceptional circumstances. (ECF No. 9.) Nothing before the Court

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constitutes grounds to reconsider the September 7th Order. The instant arguments for

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appointment of counsel were previously considered and rejected by the Court.

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It remains that Plaintiff does not have a right to appointed counsel in this case.

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Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), partially overruled on other

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grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998); 28 U.S.C. § 1915(e)(1).

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Plaintiff cites to no error, newly discovered evidence, or other grounds supporting
reconsideration regarding appointment of counsel.

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B.

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Plaintiff’s further Motion for IFP status (ECF No. 13) shall be denied, without

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MOTION TO PROCEED IFP

prejudice, for the reasons stated above
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IV.

ORDER
Accordingly, for the reasons stated above, it is HEREBY ORDERED that

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Plaintiff’s Motions for (1) Reconsideration of the March 29, 2013 Order Denying the

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Motion to Proceed IFP (ECF No. 12), and (2) IFP status (ECF No. 13) are DENIED.

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IT IS SO ORDERED.

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Dated:
ci4d6

May 6, 2013

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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