Olivera v. Cate et al

Filing 10

ORDER signed by Magistrate Judge Carolyn K. Delaney on 02/07/14 granting 9 Motion for Reconsideration. The clerk of the court shall vacate the 01/08/14 order of dismissal and re-open this case. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANGEL OLIVERA,

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Plaintiff,

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No. 2:13-cv-2376 CKD P

v.

ORDER

MATTHEW CATE, et al.,

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Defendants.

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Plaintiff, a state prisoner proceeding pro se, filed this civil rights action pursuant to 42

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U.S.C. § 1983. Plaintiff has requested that this court reconsider its January 8, 2014 order

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dismissing this action without prejudice due to plaintiff’s failure to timely file an application to

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proceed in forma pauperis.1

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A district court may reconsider a ruling under either Federal Rule of Civil Procedure 59(e)

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or 60(b). See Sch. Dist. Number. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1262 (9th

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Cir. 1993). “Reconsideration is appropriate if the district court (1) is presented with newly

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discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3)

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if there is an intervening change in controlling law.” Id. at 1263.

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Plaintiff consented to this court’s jurisdiction pursuant to 28 U.S.C. § 636(c) and Local Rule
302.
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Here, plaintiff has presented evidence that he attempted to submit a completed application

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to proceed in forma pauperis by placing it in the prison mail. Prison records show that it was sent

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on December 3, 2013. (See ECF No. 9, Exs. 1 and 2.) For unknown reasons, the application did

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not reach the court. In light of this newly discovered evidence, the court will consider plaintiff’s

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application timely filed, reopen this matter, and proceed to screen the complaint filed November

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15, 2013.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for reconsideration (ECF No. 9) is granted; and

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2. The Clerk of Court shall vacate the January 8, 2014 order of dismissal and re-open this

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case.

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Dated: February 7, 2014

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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