Molen v. Graber
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 11/7/2016 RECOMMENDING that petitioner's 20 motion to reopen this case be denied. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days.(Yin, K)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JAMES O. MOLEN,
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Petitioner,
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No. 2:15-cv-2141 KJM KCD P
v.
FINDINGS AND RECOMMENDATIONS
CONRAD M. GRABER,
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Respondent.
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Petitioner, a United States prisoner proceeding pro se, has filed a motion asking that this
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case be reopened. On September 27, 2016, this action was dismissed because: (1) petitioner
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failed to pay the filing fee or file an application to proceed in forma pauperis; and (2) the relief
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sought by petitioner must be sought in a 28 U.S.C. § 2255 motion filed in 2:12-cr-0252 TLN.
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The district court judge has referred the motion to the undersigned.
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The court may reconsider a ruling under either Federal Rule of Civil Procedure 59(e) or
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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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Petitioner does not present newly discovered evidence suggesting this matter should not
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be dismissed and the law has not changed. Furthermore, the decision to dismiss the case is not
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clearly erroneous or manifestly unjust.
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After reviewing the record, the court notes it appears at least possible that petitioner
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attempted to pay the filing fee for this action. See ECF No. 17 at 2 & 6. However, this is still not
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the appropriate action for the relief sought.
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Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s October 17, 2016
motion to reopen this case be denied.
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the
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objections shall be served and filed within fourteen days after service of the objections. The
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parties are advised that failure to file objections within the specified time may waive the right to
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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: November 7, 2016
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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