Rasheed v. Department of Justice

Filing 13

ORDER signed by Magistrate Judge Dale A. Drozd on 02/08/13 denying 12 Motion for Reconsideration without prejudice to its renewal accompanied by a certified copy of plaintiff's inmate trust account statement for the period from May 2010 throu gh July 2010 which shows the relevant filing fee deduction. The clerk of the court is directed to serve a copy of this order on plaintiff at his address of record and at California State Prison Lancaster. The clerk of the court is directed to send a courtesy copy of this order to Monica N. Anderson, Supervising Deputy Attorney General. (Monica Anderson, Attorney General). (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TAHEE ABDULLAH RASHEED,
Plaintiff,

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vs.
DEPARTMENT OF JUSTICE, et al.,

ORDER

Defendants.
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No. 2:10-cv-00013 DAD P

Plaintiff is a state prisoner proceeding pro se with an action under 42 U.S.C. §

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1983, 42 U.S.C. §§ 3769a(b) and 3769b(a)(1), and California Penal Code § 1170.12. Plaintiff

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has consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c)(1).

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By an order filed May 25, 2010, the court denied plaintiff’s application to proceed

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in forma pauperis on the basis that the “three strikes” provision of the Prisoner Litigation Reform

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Act bars the court from granting him that status. (See May 25, 2010 Order (Doc. No. 5), at 2 & 4

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(citing 28 U.S.C. § 1915(g)). At that time plaintiff was therefore ordered to pay the $350.00

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filing fee within thirty days, or this action would be dismissed. The thirty-day period expired and

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plaintiff did not pay the filing fee or otherwise respond to the court’s May 25, 2010 order. For

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that reason, on July 8, 2010, this action was dismissed without prejudice . (See July 8, 2010

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Order (Doc. No. 6)).
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Over twenty-one months later, on April 17, 2012, a motion for reconsideration of

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the July 8, 2010 order was docketed in this action. (See Doc. No. 12.) Plaintiff’s motion for

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reconsideration is one of a number of pieces of mail that were delayed by mail room staff

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misconduct at California State Prison-Sacramento (CSP-Sacramento). Plaintiff’s mail containing

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his motion for reconsideration was metered on July 14, 2010. Accordingly, the court will

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consider the motion for reconsideration to be timely filed.

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In his motion for reconsideration, plaintiff contends that $350.00 filing fee was

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withdrawn from his prison trust account in June 2010 for mailing to this court. In three other

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documents filed in this action following its dismissal, plaintiff asserts that he had completed and

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sent a request to prison officials to withdraw the necessary funds from his account to pay the

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filing fee. (See Docket Nos. 8, 9 & 11.) The Clerk of the Court, through the Financial

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Department, has informed the court, however, that no check in the amount of the $350.00 filing

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fee was ever received from plaintiff. Accordingly, good cause appearing, plaintiff’s motion for

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reconsideration will be denied without prejudice to its renewal accompanied by a certified copy

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of plaintiff’s inmate trust account statement for the period from May 2010 through July 2010

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which shows the relevant deduction to which he refers.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s April 17, 2012 motion for reconsideration (Doc. No. 12) is denied

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without prejudice to its renewal accompanied by a certified copy of plaintiff’s inmate trust

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account statement for the period from May 2010 through July 2010 which shows the relevant

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filing fee deduction.
2. The Clerk of the Court is directed to serve a copy of this order on plaintiff at

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his address of record and at California State Prison-Lancaster (CSP-Lancaster).1

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Given the passage of time between preparation of the motion for reconsideration and its
receipt by the court, the court has checked the CDCR Inmate Locator to determine whether plaintiff
is still incarcerated at CSP-Sacramento. CDCR records now show that plaintiff is currently
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3. The Clerk of the Court is directed to send a courtesy copy of this order to

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Monica N. Anderson, Supervising Deputy Attorney General.

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DATED: February 8, 2013.

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DAD:12
rash10cv0013.rec

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incarcerated at CSP-Lancaster.
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