Goolsby v. Cate et al

Filing 16

ORDER GRANTING 13 Motion for Reconsideration; ORDER VACATING Court's 10 Order Issued on May 3, 2013; ORDER GRANTING 2 Application to Proceed In Forma Pauperis; ORDER DIRECTING Payment of Inmate Filing Fee by California Department of Corrections and Rehabilitation signed by Magistrate Judge Gary S. Austin on 6/6/2013. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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THOMAS GOOLSBY,

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Plaintiff,

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1:13-cv-00119-GSA-PC
ORDER GRANTING MOTION FOR
RECONSIDERATION
(Doc. 13.)

vs.

ORDER VACATING COURT’S ORDER
ISSUED ON MAY 3, 2013
(Doc. 10.)

MATTHEW CATE, et al.,

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Defendants.

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ORDER GRANTING APPLICATION TO
PROCEED IN FORMA PAUPERIS
(Doc. 2.)

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ORDER DIRECTING PAYMENT
OF INMATE FILING FEE BY
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND REHABILITATION

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I.

BACKGROUND

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Thomas Goolsby (“Plaintiff”) is proceeding pro se with this civil rights action pursuant

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to 42 U.S.C. § 1983. The Complaint commencing this action was filed on January 25, 2013.

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(Doc. 1.)

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On January 25, 2013, Plaintiff filed an application to proceed in forma pauperis. (Doc.

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2.) On May 3, 2013, the court issued an order denying Plaintiffs’ application, and requiring

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him to pay the $350.00 filing fee for this action in full within thirty days. (Doc. 10.) On June

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5, 2013, Plaintiff filed a motion for reconsideration of the court’s order. (Doc. 13.)
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II.

MOTION FOR RECONSIDERATION

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The court has discretion to reconsider and vacate a prior order. Barber v. Hawaii, 42

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F.3d 1185, 1198 (9th Cir. 1994); United States v. Nutri-cology, Inc., 982 F.2d 394, 396 (9th

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Cir. 1992). Motions to reconsider are committed to the discretion of the trial court. Combs v.

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Nick Garin Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460

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(9th Cir. 1983) (en banc). Motions for reconsideration are disfavored, however, and are not the

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place for parties to make new arguments not raised in their original briefs. Zimmerman v. City

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of Oakland, 255 F.3d 734, 740 (9th Cir. 2001); Northwest Acceptance Corp. v. Lynnwood

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Equip., Inc., 841 F.2d 918, 925-26 (9th Cir. 1988). Nor is reconsideration to be used to ask the

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court to rethink what it has already thought. Walker v. Giurbino, 2008 WL 1767040, *2

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(E.D.Cal. 2008). To succeed, a party must set forth facts or law of a strongly convincing nature

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to induce the court to reverse its prior decision. See Kern-Tulare Water Dist. v. City of

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Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and reversed in part on

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other grounds, 828 F.2d 514 (9th Cir. 1987). When filing a motion for reconsideration, Local

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Rule 230(j) requires a party to show the Anew or different facts or circumstances claimed to

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

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exist for the motion.@ L.R. 230(j).

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III.

DISCUSSION

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Plaintiff argues that the court should grant his application to proceed in forma pauperis

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because he lacks sufficient funds to pay the $350.00 filing fee in full. Plaintiff submits a copy

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of his prison trust account statement reflecting deposits and withdrawals from May 7, 2012 to

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May 4, 2013. (Doc. 13 at 4-23.) Plaintiff argues that his account has never had a balance of

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$350.00 or more since he filed this action on January 25, 2013. Plaintiff asserts that the

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balance of his account was temporarily high because he received a $1,000 settlement from a

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separate case in October 2012, but ordinarily he only receives periodic gifts of $50.00 - $75.00

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for hygiene and stationery supplies and other obligations.

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Pursuant to 28 U.S.C. § 1915, a court may authorize the commencement of a case

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without prepayment of fees by a prisoner who submits “an affidavit that includes a statement of
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all assets such prisoner possesses that the person is unable to pay such fees or give security

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therefore.” 28 U.S.C. § 1915(a)(1). In addition to filing the affidavit, the prisoner must also

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“submit a certified copy of the trust fund account statement ... for the prisoner for the 6-month

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period immediately preceding the filing of the complaint.” Id. Prisoners proceeding in forma

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pauperis are required to pay the full amount of a filing fee, which the court collects from the

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prisoner’s trust account when funds are available, pursuant to § 1915(b).

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1915(b)(1),(2). “In no event shall a prisoner be prohibited from bringing a civil action ... for

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the reason that the prisoner has no assets and no means by which to pay the initial filing fee.”

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28 U.S.C. § 1915(b)(4).

28 U.S.C. §

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When this case was filed on January 25, 2013, Plaintiff submitted an application to

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proceed in forma pauperis and a certified copy of his prison trust account statement showing

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deposits, withdrawals, and balances for the 6-month period from July 1, 2012 to December 24,

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2012. (Doc. 2.) For the 6-month period reflected, Plaintiff’s average monthly deposits were

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$220.83, and his average monthly balance was $628.41. (Id. at 5.) On December 24, 2012,

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Plaintiff’s account had a balance of $475.77. (Id. at 9.) Plaintiff did not submit any account

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information for the time period after December 24, 2012. Based on Plaintiff’s application and

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trust account statement, the court denied the application and ordered Plaintiff to pay the

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$350.00 filing fee in full for this action within thirty days. (Doc. 10.)

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Plaintiff now submits new facts which were not shown upon his prior motion.

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Plaintiff’s new evidence shows that on January 25, 2013, the date this case was filed, his trust

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account contained a balance of $342.40.1 (Doc. 13 at 18.)

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Plaintiff’s new evidence shows that at the time he filed this action, he was unable to pay

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the $350.00 filing fee in full for this action. Therefore, Plaintiff’s motion for reconsideration

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shall be granted, the court shall reverse its prior decision, and Plaintiff’s application to proceed

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in forma pauperis shall be granted. As discussed above, Plaintiff is obligated to pay the

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statutory filing fee of $350.00 for this action. 28 U.S.C. 1915(b)(1). Plaintiff is obligated to

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Moreover, between January 2013 and May 4, 2013, the balance in Plaintiff’s account gradually fell to
$96.16. (Doc. 13 at 18-22.)
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make monthly payments in the amount of twenty percent of the preceding month=s income

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credited to Plaintiff=s trust account, and the California Department of Corrections and

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Rehabilitation is required to send to the Clerk of the Court payments from Plaintiff=s account

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each time the amount in the account exceeds $10.00, until the statutory filing fee is paid in full.

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28 U.S.C. ' 1915(b)(2).

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IV.

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CONCLUSION
In accordance with the above and good cause appearing therefore, IT IS HEREBY

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ORDERED that:

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1.

Plaintiff’s motion for reconsideration, filed on June 5, 2013, is GRANTED;

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2.

The court’s order of May 3, 2013, which denied Plaintiff’s application to

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proceed in forma pauperis and required Plaintiff to pay the $350.00 filing fee in

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full for this action within thirty days, is VACATED;

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3.

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Plaintiff's application to proceed in forma pauperis, filed on January 25, 2013, is
GRANTED;

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4.

The Director of the California Department of Corrections and

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Rehabilitation (CDCR) or his designee shall collect payments from

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plaintiff=s prison trust account in an amount equal to twenty per cent (20%)

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of the preceding month=s income credited to the prisoner=s trust account

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and shall forward those payments to the Clerk of the Court each time the

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amount in the account exceeds $10.00, in accordance with 28 U.S.C. '

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1915(b)(2), until a total of $350.00 has been collected and forwarded to the

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Clerk of the Court. The payments shall be clearly identified by the name

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and number assigned to this action;

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The Clerk of the Court is directed to serve a copy of this order and a copy of

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plaintiff=s in forma pauperis application on the Director of the CDCR, via the

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court’s electronic case filing system (CM/ECF); and

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The Clerk of the Court is directed to serve a copy of this order on the Financial
Department, U.S. District Court, Eastern District of California, Fresno Division.

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IT IS SO ORDERED.
Dated:

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June 6, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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