Lemus v. Sullivan et al

Filing 9

ORDER REOPENING CASE; DEADLINE TO PROVIDE DECLARATION AND COMPLETED IN FORMA PAUPERIS MATERIALS re 8 Notice (Other) filed by Juan Carlos Lemus. Signed by Judge Phyllis J. Hamilton on 12/13/11. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 12/13/2011)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 JUAN CARLOS LEMUS, Plaintiff, 8 9 11 For the Northern District of California United States District Court 10 12 No. C 11-1099 PJH (PR) vs. CORRECTIONAL TRAINING FACILITY EMPLOYEES; DR. E. SULLIVAN, DR. J. LEE, RN A. COLEMAN, CMO D. JACOBSEN, B. DIXON, JANE DOES AND JOHN DOES (1-20), and DIRECTOR M. CATE (CDCR), ORDER REOPENING CASE; DEADLINE TO PROVIDE DECLARATION AND COMPLETED IN FORMA PAUPERIS MATERIALS 13 Defendants. 14 15 / This is a civil rights case filed pro se by a state prisoner. On the day the complaint 16 was filed, the clerk sent plaintiff a notice that he had not paid the filing fee or filed an 17 application for leave to proceed in forma pauperis (“IFP”). Plaintiff filed an IFP application 18 within the time allowed. The court then entered an order noting that the application was 19 defective because page five, the “Certificate of Funds in Inmate Account,” was not 20 completed and signed by a authorized person at the prison, and the attached printout of 21 transactions in plaintiff’s inmate account did not cover a six-month period, as required by 22 28 U.S.C. § 1915(a)(2). He was granted thirty days to either pay the filing fee or provide a 23 complete and proper IFP application. He filed another application, but it again omitted 24 page five, and this time also omitted the printout of transactions. The case was dismissed. 25 Plaintiff has now written to the court saying that the prison’s accounting office was at 26 fault, having both times omitted page five, and that his counselor explained to him that it 27 was the prison’s fault, not his. He has been provided, he says, with the name of the 28 litigation coordinator, who could explain what happened. He asks that the case be 1 reopened. The filing, which is number eight on the docket, is not captioned as a motion, 2 but will be treated as a motion to reopen. 3 If the facts are as plaintiff alleges, the failure to provide the necessary IFP materials 4 was not his fault. The motion is not, however, signed under penalty of perjury, so does not 5 provide the necessary factual basis. The case will be reopened and plaintiff will be 6 afforded an opportunity to provide a declaration (a statement signed under penalty of 7 perjury) setting out the facts of his attempts to obtain the necessary IFP materials and, if 8 possible, to actually provide a properly-completed IFP application. 9 11 For the Northern District of California United States District Court 10 12 CONCLUSION Plaintiff’s motion to reopen (document number 8 on the docket) is GRANTED. The clerk shall reopen this case. Within thirty days of this order plaintiff shall file a declaration signed under penalty of 13 perjury explaining why he was unable to obtain the correct IFP materials from the trust 14 department of the prison, and, if possible, a properly-completed IFP application. If he does 15 not respond within the time allowed, or if the facts he provides are insufficient to establish 16 that the failure was not his fault, the case will again be closed. 17 IT IS SO ORDERED. 18 Dated: December 13, 2011. PHYLLIS J. HAMILTON United States District Judge 19 20 21 22 23 24 25 26 27 28 P:\PRO-SE\PJH\CR.11\LEMUS1099.reopen.wpd 2

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