Wilkins v. Gonzalez, et al.

Filing 63

ORDER signed by District Judge Kimberly J. Mueller on 3/13/2018 DENYING IN PART and GRANTING IN PART 62 request to stay or extension of time to pay his filing fee. To the extent plaintiff's filing may be construed as a motion for reconsid eration of the court's 61 order revoking his IFP status, the motion is DENIED. Plaintiff is ORDERED to pay the $400.00 filing fee by 4/2/2018. Absent good cause, the court will not grant another extension. Failure to comply with this order will result in dismissal of this action. (York, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KEENAN WILKINS,

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Plaintiff,

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No. 2: 16-cv-347 KJM KJN P
ORDER

v.
PAUL GONZALEZ, et al.,

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Defendants.

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Plaintiff, a state prisoner proceeding pro se in this civil rights action, requests a

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stay or extension of time to pay his filing fee. Mot., ECF No. 62. The court DENIES in part and

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GRANTS in part plaintiff’s request.
On February 1, 2018, the court adopted in part the magistrate judge’s findings and

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recommendations and revoked plaintiff’s in forma pauperis status. Order, ECF No. 61. In

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reaching this conclusion, the court found plaintiff has three strikes under 28 U.S.C. § 1915(g)1

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28 U.S.C. § 1915(g) provides:
In no event shall a prisoner bring a civil action or appeal a judgment
in a civil action or proceeding under this section if the prisoner has,
on 3 or more prior occasions, while incarcerated or detained in any
facility, brought an action or appeal in a court of the United States
that was dismissed on the grounds that it is frivolous, malicious, or
fails to state a claim upon which relief may be granted, unless the
prisoner is under imminent danger of serious physical injury.
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and that he has shown no imminent danger of serious physical injury. Id. at 2-3. The court

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ordered plaintiff to pay the $400.00 filing fee for this action within thirty days and noted,

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“[f]ailure to comply with this order will result in the dismissal of this action. Id.

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On the day payment was due, plaintiff filed the instant motion, styled “declaration

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of plaintiff in support of request for stay or alternative extension of time to pay filing fee.” Mot.,

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ECF No. 62. Plaintiff explains he “currently ha[s] pending in the 9th Circuit Case No. 17-16274,

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an Appeal on IFP status [filed in a separate action].” Id. at 1. Plaintiff argues he will prevail on

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his appeal based on “clear establishment of what ‘frivolous’ means” and therefore requests the

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court stay this action pending resolution of his appeal. Id. at 2 (noting a stay “will also prevent an

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unnecessary Appeal in this Action”). Plaintiff alternatively requests a one-time extension of 30

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days to pay the filing fee, noting he is indigent, has no funds in his trust account and has already

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partially paid the filing fee through trust deductions. Id.

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To the extent plaintiff’s filing may be construed as a motion for reconsideration of

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the court’s order revoking his IFP status, the motion is DENIED. Plaintiff has shown no newly

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discovered evidence, clear error or manifest injustice in the court’s prior order or an intervening

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change in controlling law. See Sch. Dist. Number. 1J, Multnomah Cty. v. ACandS, Inc., 5 F.3d

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1255, 1263 (9th Cir. 1993) (describing grounds for reconsideration). His motion to stay is also

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DENIED as he cites no authority or compelling reason to justify a stay. Given plaintiff’s indigent

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status, his partial payment, and his effort to request an extension before the deadline lapsed, the

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court GRANTS his request for a one-time extension of thirty days to pay the filing fee. Absent

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good cause, the court will not grant another extension.

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Accordingly, plaintiff is ORDERED to pay the $400.00 filing fee by April 2,
2018. Failure to comply with this order will result in dismissal of this action.

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This resolves ECF No. 62.

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IT IS SO ORDERED.

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DATED: March 13, 2018.

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UNITED STATES DISTRICT JUDGE

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