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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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BILLY RAY O'NEAL,

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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.,

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Defendants.

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/

Docket No. 2

On August 10, 2012, Plaintiff, a former state prisoner, filed the present pro se prisoner

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United States District Court
For the Northern District of California

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complaint under 42 U.S.C. § 1983.1 In this complaint, Plaintiff asserts an Eighth Amendment claim,

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alleging that, in 2007, after he was arrested and placed in the San Francisco County Jail, he was

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beaten by Deputy J. Reymondo. He also alleges a conspiracy to falsify evidence of his beating

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between Deputies Reymondo and Camarra, Lieutenant Gorwood and Sheriff Michael Hennessy.

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Also, on August 10, 2012, Plaintiff filed the instant motion for reconsideration of the

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dismissal of his previous case, C 08-4669 SBA. In the 2008 case, Plaintiff brought the same claims

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against the same Defendants that he sues here. The 2008 case was dismissed because Plaintiff had

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failed to exhaust administrative remedies. See C 08-4669 SBA, Dkt. 41. Dismissal was without

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prejudice to refiling another complaint after Plaintiff exhausted administrative remedies. Plaintiff

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appealed this Order to the Ninth Circuit Court of Appeals and, on October 1, 2012, the Ninth Circuit

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granted to Plaintiff IFP status on appeal. Therefore, Plaintiff’s appeal of the 2008 case is pending

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before the Ninth Circuit, which divests this Court of jurisdiction over it. Because this Court lacks

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jurisdiction over the 2008 case, it cannot consider Plaintiff’s motion for reconsideration of its

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previous order dismissing the case. Therefore, the motion for reconsideration is denied

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The Court also notes a serious problem in Plaintiff’s 2012 case. On August 10, 2012, the

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Court sent Plaintiff a notice that he had to pay the $350.00 filing fee or sign and complete this

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Court’s In Forma Pauperis application. See Dkt. 3. The notice contained the following warning:

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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).

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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.

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To this date, Plaintiff has not filed an In Forma Pauperis application or paid the $350.00

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filing fee. Because Plaintiff has ignored the Court’s warning, his case should be dismissed.

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However, in the interests of justice, the Court will allow Plaintiff another thirty days from the date of

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this Order in which to file his In Forma Pauperis application. If Plaintiff does not file his application

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in this time period, his case will be dismissed without prejudice for failure to prosecute.

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CONCLUSION

United States District Court
For the Northern District of California

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For the foregoing reasons, the Court orders as follows:

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1. Plaintiff’s motion for reconsideration is DENIED.

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2. Plaintiff has thirty days from the date of this Order to file his In Forma Pauperis

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application in this case.
3. The Clerk of the Court shall send Plaintiff the Court’s blank In Forma Pauperis

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application, which includes a Certificate of Funds in Prisoner’s Account form, and a return

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envelope.2

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4. This terminates Docket No. 2.

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IT IS SO ORDERED.

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DATED:

11/20/12
SAUNDRA BROWN ARMSTRONG
United States District Judge

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If Plaintiff has been released from custody, he does not have to complete the Prisoner Trust
Account form.
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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BILLY RAY O’NEAL,

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Plaintiff,

Case Number: CV12-04236 SBA
CERTIFICATE OF SERVICE
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v.
J. REYMUNDO et al,
Defendant.

/

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United States District Court
For the Northern District of California

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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.

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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

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