Ballard v. Wong et al

Filing 7

ORDER signed by Magistrate Judge Craig M. Kellison on 9/30/13 ORDERING that Plaintiffs motion for reconsideration 5 is DENIED; and Plaintiffs motion for leave to proceed in forma pauperis 6 is GRANTED.(Dillon, 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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JOHN MARVIN BALLARD,

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No. 2:12-cv-226-CMK-P

Plaintiff,
vs.

ORDER

SAMUEL WONG, et al.,
Defendants.
/
Plaintiff, a civil detainee, brings this civil rights action pursuant to 42 U.S.C. §

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1983. Pending before the court is plaintiff’s motion for reconsideration (Doc. 5) and application

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to proceed in forma pauperis (Doc. 6).

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The court issued an order requiring plaintiff to resolve his fee status in order to

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proceed in this action, as he had neither paid the filing fee nor submitted an application to

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proceed in forma pauperis. Petitioner’s motion for reconsideration states he is not subjected to

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the requirements of 28 U.S.C. § 1915(a) as he is a civil detainee not a prisoner.

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The court may grant reconsideration of any order under Federal Rules of Civil

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Procedure 60 based on, among other things: (1) mistake, inadvertence, surprise, or excusable

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neglect; (2) newly discovered evidence which, with reasonable diligence, could not have been
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discovered within ten days of entry of judgment; and (3) fraud, misrepresentation, or misconduct

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of an opposing party. A motion for reconsideration on any of these grounds must be brought

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within a reasonable time and no later than one year of entry of the order being challenged. See

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Fed. R. Civ. P. 60(c)(1).

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Here, plaintiff apparently brings this motion on the basis that he believes the court

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erred in determining § 1915(a) applies to this action. The court understands that petitioner is a

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civil detainee, not a prisoner. However, 28 U.S.C. § 1915(a) applies to all cases wherein the

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plaintiff wishes to proceed in an action without prepayment of fees, regardless of whether the

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plaintiff is a prisoner or not. Thus, no mistake was made, and plaintiff’s motion for

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reconsideration will be denied.

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Plaintiff has, however, also filed the necessary application for leave to proceed in

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forma pauperis. Plaintiff’s affidavit shows that plaintiff is unable to prepay fees and costs or give

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security therefor. His motion for leave to proceed in forma pauperis will therefore be granted.

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Plaintiff’s complaint, and service thereof by the United States Marshal if appropriate, will be

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addressed separately. The Clerk of the Court shall not issue summons or set this matter for an

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initial scheduling conference unless specifically directed by the court to do so.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s motion for reconsideration (Doc. 5) is denied; and

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2.

Plaintiff’s motion for leave to proceed in forma pauperis (Doc. 6) is

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granted.

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DATED: September 30, 2013
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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