Turner v. Gibson

Filing 14

ORDER DENYING AS MOOT 11 Motion to Proceed IFP and ORDER DENYING 12 Motion for Reconsideration signed by District Judge Lawrence J. O'Neill on 10/23/2013. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY RECARDO G. TURNER, 12 Plaintiff, 13 14 vs. ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS AS MOOT (Doc. 11.) CONNIE GIBSON, et al., 15 Defendants. 16 17 1:13-cv-01612-LJO-GSA-PC I. ORDER DENYING MOTION FOR RECONSIDERATION (Doc. 12.) BACKGROUND 18 Anthony Recardo G. Turner (APlaintiff@) is a state prisoner proceeding pro se in this 19 civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint on August 30, 20 2013 at the United States District Court for the Northern District of California, together with a 21 request for leave to proceed in forma pauperis under 28 U.S.C. § 1915. (Doc. 1.) The case was 22 subsequently transferred to the Eastern District of California on October 1, 2013. (Doc. 4.) On 23 October 10, 2013, the court entered an order denying Plaintiff’s request to proceed in forma 24 pauperis, and dismissing the case under 28 U.S.C. § 1915(g), without prejudice to refiling the 25 case with submission of the $400.00 filing fee in full. (Doc. 8.) 26 On October 21, 2013, Plaintiff submitted an application to proceed in forma pauperis. 27 (Doc. 11.) Plaintiff also filed a declaration in which he requests reconsideration of the court’s 28 order dismissing this action. (Doc. 12.) 1 1 II. APPLICATION TO PROCEED IN FORMA PAUPERIS 2 In light of the fact that this case was dismissed on October 10, 2013, without prejudice 3 to refiling the case with submission of the $400.00 filing fee in full, Plaintiff’s application to 4 proceed in forma pauperis is moot and shall be denied as such. 5 III. MOTION FOR RECONSIDERATION 6 A. 7 The Court has discretion to reconsider and vacate a prior order. Barber v. Hawaii, 42 8 F.3d 1185, 1198 (9th Cir. 1994); United States v. Nutri-cology, Inc., 982 F.2d 394, 396 (9th 9 Cir. 1992). Motions to reconsider are committed to the discretion of the trial court. Combs v. 10 Nick Garin Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460 11 (9th Cir. 1983) (en banc). To succeed, a party must set forth facts or law of a strongly 12 convincing nature to induce the court to reverse its prior decision. See Kern-Tulare Water Dist. 13 v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and reversed in 14 part on other grounds, 828 F.2d 514 (9th Cir. 1987). When filing a motion for reconsideration, 15 Local Rule 230(j) requires a party to show the Anew or different facts or circumstances claimed 16 to exist which did not exist or were not shown upon such prior motion, or what other grounds 17 exist for the motion.@ L.R. 230(j). Legal Standard Plaintiff’s Motion 18 B. 19 Plaintiff argues that the court should reconsider its order dismissing this action because 20 he was allowed to proceed in forma pauperis in two other cases which he filed in the 21 Sacramento Division of the Eastern District of California. 22 continues to be under “Imminent Threat of Serious Injuries and Irreparable Harm by the 23 Defendants Conspiracy Retaliation as described in the Complaint.” Motion, Doc. 12 ¶5. Plaintiff also argues that he 24 C. 25 Plaintiff’s argument that this case should be reopened because he was allowed to 26 proceed in forma pauperis in other cases is unpersuasive. Plaintiff’s argument that he is 27 presently in imminent danger is also unpersuasive, because the imminent danger exception of 28 28 U.S.C. § 1915(g) is based on whether a prisoner is under imminent danger at the time he Discussion 2 1 filed the complaint, not afterward. Plaintiff has not made any new argument or set forth facts 2 or law of a strongly convincing nature to induce the court to reverse its prior decision. 3 Therefore, the motion for reconsideration shall be denied. 4 IV. CONCLUSION 5 Based on the foregoing, IT IS HEREBY ORDERED that: 6 1. 7 Plaintiff’s application to proceed in forma pauperis, filed on October 21, 2013, is DENIED as moot; and 8 2. Plaintiff’s motion for reconsideration, filed on October 21, 2013, is DENIED. 9 10 11 IT IS SO ORDERED. Dated: 12 13 14 /s/ Lawrence J. O’Neill October 23, 2013 UNITED STATES DISTRICT JUDGE DEAC_Signature-END: b9ed48bb 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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