O'Neal v. Reymondo et al

Filing 4

ORDER by Judge ARMSTRONG denying 2 Motion for Reconsideration re 2 MOTION for Reconsideration filed by Billy Ray O'Neal (lrc, COURT STAFF) (Filed on 11/21/2012)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 BILLY RAY O'NEAL, 4 5 6 No. C 12-4236 SBA (PR) Plaintiff, ORDER DENYING RECONSIDERATION OF ORDER IN CASE NUMBER C 08-4669 SBA; RENEWED NOTICE OF NEED TO FILE IN FORMA PAUPERIS APPLICATION v. J. REYMONDO, et al., 7 Defendants. 8 / Docket No. 2 On August 10, 2012, Plaintiff, a former state prisoner, filed the present pro se prisoner 10 United States District Court For the Northern District of California 9 complaint under 42 U.S.C. § 1983.1 In this complaint, Plaintiff asserts an Eighth Amendment claim, 11 alleging that, in 2007, after he was arrested and placed in the San Francisco County Jail, he was 12 beaten by Deputy J. Reymondo. He also alleges a conspiracy to falsify evidence of his beating 13 between Deputies Reymondo and Camarra, Lieutenant Gorwood and Sheriff Michael Hennessy. 14 Also, on August 10, 2012, Plaintiff filed the instant motion for reconsideration of the 15 dismissal of his previous case, C 08-4669 SBA. In the 2008 case, Plaintiff brought the same claims 16 against the same Defendants that he sues here. The 2008 case was dismissed because Plaintiff had 17 failed to exhaust administrative remedies. See C 08-4669 SBA, Dkt. 41. Dismissal was without 18 prejudice to refiling another complaint after Plaintiff exhausted administrative remedies. Plaintiff 19 appealed this Order to the Ninth Circuit Court of Appeals and, on October 1, 2012, the Ninth Circuit 20 granted to Plaintiff IFP status on appeal. Therefore, Plaintiff’s appeal of the 2008 case is pending 21 before the Ninth Circuit, which divests this Court of jurisdiction over it. Because this Court lacks 22 jurisdiction over the 2008 case, it cannot consider Plaintiff’s motion for reconsideration of its 23 previous order dismissing the case. Therefore, the motion for reconsideration is denied 24 The Court also notes a serious problem in Plaintiff’s 2012 case. On August 10, 2012, the 25 Court sent Plaintiff a notice that he had to pay the $350.00 filing fee or sign and complete this 26 Court’s In Forma Pauperis application. See Dkt. 3. The notice contained the following warning: 27 28 1 In his motion for reconsideration, Plaintiff indicates that he was released from custody on May 10, 2012. However, Plaintiff’s complaint indicates that his address is the San Francisco County Jail and he has not submitted a change of address to the Court. Plaintiff is required to inform the Court of his current address. See L.R. 3-11(a). 1 3 Warning: YOU MUST RESPOND TO THIS NOTICE. If you do not respond within THIRTY DAYS from the filing date stamped above, your action will be DISMISSED, the file closed and the entire filing fee will become due immediately. Filing a Prisoner’s In Forma Pauperis application will allow the court to determine whether installment payment of the filing fee should be allowed. 4 To this date, Plaintiff has not filed an In Forma Pauperis application or paid the $350.00 2 5 filing fee. Because Plaintiff has ignored the Court’s warning, his case should be dismissed. 6 However, in the interests of justice, the Court will allow Plaintiff another thirty days from the date of 7 this Order in which to file his In Forma Pauperis application. If Plaintiff does not file his application 8 in this time period, his case will be dismissed without prejudice for failure to prosecute. 9 CONCLUSION United States District Court For the Northern District of California 10 For the foregoing reasons, the Court orders as follows: 11 1. Plaintiff’s motion for reconsideration is DENIED. 12 2. Plaintiff has thirty days from the date of this Order to file his In Forma Pauperis 13 14 application in this case. 3. The Clerk of the Court shall send Plaintiff the Court’s blank In Forma Pauperis 15 application, which includes a Certificate of Funds in Prisoner’s Account form, and a return 16 envelope.2 17 4. This terminates Docket No. 2. 18 IT IS SO ORDERED. 19 20 DATED: 11/20/12 SAUNDRA BROWN ARMSTRONG United States District Judge 21 22 23 24 25 26 27 28 2 If Plaintiff has been released from custody, he does not have to complete the Prisoner Trust Account form. 2 1 2 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 BILLY RAY O’NEAL, 5 Plaintiff, Case Number: CV12-04236 SBA CERTIFICATE OF SERVICE 6 7 8 v. J. REYMUNDO et al, Defendant. / 9 United States District Court For the Northern District of California 10 11 12 13 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on November 21, 2012, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 14 15 16 17 18 19 20 Billy Ray O’Neal #12672920 San Francisco County Jail SF#288973 850 Bryant Street San Francisco, CA 94103 Dated: November 21, 2012 Richard W. Wieking, Clerk By: Lisa Clark, Deputy Clerk L:\PRO-SE\SBA\CR.12\ONeal 12-4236 ReconDeny.wpd 21 22 23 24 25 26 27 28 3

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