Smith v. Rodriguez et al

Filing 112

ORDER signed by Magistrate Judge Allison Claire on 06/27/17 denying 111 Motion for Reconsideration. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EARL D. SMITH,

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No. 2:13-cv-02192 JAM AC P
Plaintiff,

v.

ORDER

R. RODRIGUEZ et al.,
Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. Defendants filed motions for summary judgment (ECF Nos. 69 & 76) and these

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were granted on December 27, 2016. ECF Nos. 101 & 102. Plaintiff filed an appeal (ECF No.

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105) and on March 7, 2017 the Ninth Circuit dismissed the appeal for failure to respond to an

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order (ECF No. 110). On March 20, 2017, plaintiff filed a “motion for reconsideration of in

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forma pauperis re appeal.” ECF No. 111.

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Plaintiff was allowed to proceed in forma pauperis in this action (ECF No. 10) and Fed. R.

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App. P. 24(a)(3) provides that a party who was permitted to proceed in forma pauperis in the

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district court action may also proceed on appeal in forma pauperis, subject to certain inapplicable

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exceptions. The Ninth Circuit recognized the continuance of plaintiff’s in forma pauperis status

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on appeal, but ordered plaintiff to provide an authorization form which directed prison officials to

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collect and forward the appellate filing fee. See Earl Smith v. R. Rodriguez, et al., # 17-15122
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(Docket Entry 3). Plaintiff failed to timely comply with this order, and the case was dismissed for

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failure to prosecute. Id. at Docket Entry 6. In light of this procedural history, the court finds that

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plaintiff’s current motion must fail. This court obviously lacks the authority to reconsider the

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Ninth Circuit’s dismissal for failure to prosecute. Indeed, plaintiff appears to have recognized as

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much – on May 4, 2017 he filed a motion for reconsideration with the Ninth Circuit. Id. at

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Docket Entry 7.

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Accordingly, it is HEREBY ORDERED THAT plaintiff’s motion for reconsideration

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(ECF No. 111) is denied.

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DATED: June 27, 2017

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