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