Cruz v. Chandler
Filing
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ORDER by Judge Haywood S. Gilliam, Jr. DENYING ( 12 , 13 ) MOTION FOR RECONSIDERATION AND MOTION FOR RESPONSE. (ndrS, COURT STAFF) (Filed on 1/7/2021)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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GUILLERMO TRUJILLO CRUZ,
Plaintiff,
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ORDER DENYING MOTION FOR
RECONSIDERATION AND MOTION
FOR RESPONSE
v.
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Re: Dkt. Nos. 12, 13
CHANDLER,
Defendant.
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United States District Court
Northern District of California
Case No. 20-cv-03421-HSG
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Plaintiff, an inmate at Pelican Bay State Prison, filed this pro se civil rights action pursuant
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to 42 U.S.C. § 1983. Dkt. No. 1. Plaintiff has filed a motion for clarification requesting that the
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Court review the record, vacate the dismissal, and grant him leave to proceed in forma pauperis
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(Dkt. No. 12) and a motion for response. The Court construes these motions as renewed motions
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for reconsideration, and DENIES these motions for the following reasons.
DISCUSSION
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I.
Background
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On September 28, 2020, the Court denied Plaintiff leave to proceed in forma pauperis
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pursuant to the three-strikes provision of 28 U.S.C. § 1915(g), finding that Plaintiff’s claims of
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imminent danger were speculative. Dkt. No 7. The Court ordered Plaintiff to pay the $400 filing
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and administrative fee in full by October 26, 2020 or face dismissal of this action. Dkt. No. 7.
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Plaintiff failed to pay the filing fee by the deadline.
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On October 29, 2020, the Court dismissed this action without prejudice to re-filing upon
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payment of the full filing fee, and entered judgement in favor of Defendant. Dkt. Nos. 8, 9. That
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same day, Plaintiff filed objections to the Court’s September 28, 2020 order denying leave to
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proceed in forma pauperis, and filed a renewed in forma pauperis application. Dkt. No. 10. The
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Court construed these objections as a motion for reconsideration pursuant to Fed. R. Civ. P. 60
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and denied the motion for reconsideration because Plaintiff had not set forth clear error, mistake,
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or any other grounds to warrant reconsideration. Dkt. No. 11.
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II.
Pending Motions
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In his motion for clarification, Plaintiff argues that the Court erred in dismissing his case
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with prejudice on the grounds that he failed to pay the filing fee or otherwise communicate with
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the Court because he communicated with the Court on October 16, 2020 regarding his eligibility
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for in forma pauperis status. Plaintiff further argues that the Court is without jurisdiction to
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dismiss this case prior to defendants served because the undersigned is a magistrate judge.
Plaintiff requests that the Court review the record, vacate the dismissal, and grant him leave to
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United States District Court
Northern District of California
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proceed in forma pauperis. Dkt. No. 12. In his motion for response, Plaintiff again argues that the
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Court is without jurisdiction to dismiss this case prior to defendants served because the
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undersigned is a magistrate judge. He also argues that he should be allowed to proceed in forma
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pauperis because he is indigent and unable to obtain any prison job that would allow him pay the
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filing fee. Dkt. No. 13.
Plaintiff’s arguments are both factually incorrect and without merit. The Court dismissed
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this action without prejudice because Plaintiff had failed to pay the filing fee (Dkt. No. 8), and not
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because he failed to communicate with the Court. The undersigned is not a magistrate judge and
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has full authority to dismiss this case. Finally, Section 1915(g) provides that an inmate who has
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previously filed three or more actions that qualify as strikes within the meaning of 28 U.S.C. §
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1915(g) and fails to demonstrate that he was in imminent danger at the time he filed the complaint
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must be denied leave to proceed in forma pauperis, regardless of whether he is indigent.
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Accordingly, the Court DENIES Plaintiff’s renewed motions for reconsideration. Dkt. Nos. 12,
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13.
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CONCLUSION
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For the reasons set forth above, the Court DENIES Plaintiff’s renewed motions for
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reconsideration. Dkt. Nos. 12, 13.
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//
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This order terminates Dkt. Nos. 12, 13. This case remains closed.
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IT IS SO ORDERED.
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Dated: 1/7/2021
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge
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United States District Court
Northern District of California
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