Lemus v. Sullivan et al
Filing
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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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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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JUAN CARLOS LEMUS,
Plaintiff,
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For the Northern District of California
United States District Court
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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
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Defendants.
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This is a civil rights case filed pro se by a state prisoner. On the day the complaint
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was filed, the clerk sent plaintiff a notice that he had not paid the filing fee or filed an
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application for leave to proceed in forma pauperis (“IFP”). Plaintiff filed an IFP application
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within the time allowed. The court then entered an order noting that the application was
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defective because page five, the “Certificate of Funds in Inmate Account,” was not
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completed and signed by a authorized person at the prison, and the attached printout of
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transactions in plaintiff’s inmate account did not cover a six-month period, as required by
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28 U.S.C. § 1915(a)(2). He was granted thirty days to either pay the filing fee or provide a
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complete and proper IFP application. He filed another application, but it again omitted
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page five, and this time also omitted the printout of transactions. The case was dismissed.
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Plaintiff has now written to the court saying that the prison’s accounting office was at
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fault, having both times omitted page five, and that his counselor explained to him that it
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was the prison’s fault, not his. He has been provided, he says, with the name of the
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litigation coordinator, who could explain what happened. He asks that the case be
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reopened. The filing, which is number eight on the docket, is not captioned as a motion,
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but will be treated as a motion to reopen.
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If the facts are as plaintiff alleges, the failure to provide the necessary IFP materials
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was not his fault. The motion is not, however, signed under penalty of perjury, so does not
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provide the necessary factual basis. The case will be reopened and plaintiff will be
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afforded an opportunity to provide a declaration (a statement signed under penalty of
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perjury) setting out the facts of his attempts to obtain the necessary IFP materials and, if
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possible, to actually provide a properly-completed IFP application.
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For the Northern District of California
United States District Court
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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
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perjury explaining why he was unable to obtain the correct IFP materials from the trust
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department of the prison, and, if possible, a properly-completed IFP application. If he does
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not respond within the time allowed, or if the facts he provides are insufficient to establish
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that the failure was not his fault, the case will again be closed.
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IT IS SO ORDERED.
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Dated: December 13, 2011.
PHYLLIS J. HAMILTON
United States District Judge
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P:\PRO-SE\PJH\CR.11\LEMUS1099.reopen.wpd
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