Dominguez v. Cate

Filing 9

ORDER by Judge Ronald M. Whyte Denying 8 Motion for Reconsideration. (jgS, COURT STAFF) (Filed on 10/12/2012)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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FRANCISCO DOMINGUEZ,
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Petitioner,
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vs.
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MATTHEW CATE,
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Respondent.
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___________________________________ )

C 11-6309 RMW (PR)
ORDER DENYING MOTION FOR
RECONSIDERATION

(Docket No. 8)

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On December 14, 2011, petitioner, a state prisoner proceeding pro se, filed writ of habeas
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corpus. That same day, the clerk of the court sent petitioner a notice that, within thirty days, he
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must pay the filing fee, or file a completed motion for leave to proceed in forma pauperis. On
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March 6, 2012, after having received no communication from petitioner, the court dismissed this
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action without prejudice for failure to file a motion for leave to proceed in forma pauperis, or to
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pay the filing fee. Over four months later, on July 20, 2012, petitioner filed a motion for
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reconsideration.
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Rule 60(b) of the Federal Rules of Civil Procedure provides for reconsideration where
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one or more of the following is shown: (1) mistake, inadvertence, surprise or excusable neglect;
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(2) newly discovered evidence that by due diligence could not have been discovered before the
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court’s decision; (3) fraud by the adverse party; (4) voiding of the judgment; (5) satisfaction of
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Order Denying Motion for Reconsideration
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the judgment; (6) any other reason justifying relief. See Fed. R. Civ. P. 60(b); School Dist. 1J v.

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ACandS Inc., 5 F.3d 1255, 1263 (9th Cir.1993). Although couched in broad terms, subparagraph

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(6) requires a showing that the grounds justifying relief are extraordinary. Twentieth Century -

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Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981).

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In the present motion, petitioner does not indicate what provision of Rule 60(b) applies to

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his case. Petitioner does not make a showing of mistake, inadvertence, surprise or excusable

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neglect. He does not set forth any newly discovered evidence, fraud, or any grounds for finding

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that the judgment is void or has been satisfied. Nor does he set forth any other reason justifying

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relief.

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Rule 60(b)(6) affords courts the discretion and power “to vacate judgments whenever

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such action is appropriate to accomplish justice.” Phelps v. Alameida, 569 F.3d 1120, 1135 (9th

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Cir. 2009). In applying Rule 60(b)(6) to petitions for habeas corpus, the Ninth Circuit has

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considered the following factors to guide its exercise of its Rule 60(b)(6) discretion: (1) a

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showing of extraordinary circumstances, such as a change in intervening law; (2) the petitioner’s

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exercise of diligence in pursuing the issue during federal habeas proceedings; (3) interest in

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finality; (4) delay between the finality of the judgment and the motion for Rule 60(b)(6) relief;

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(5) degree of connection between the extraordinary circumstance and the decision for which

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reconsideration is sought; and (6) comity. See id. (granting 60(b)(6) relief where the core issue

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in petition was not settled until fifteen months after the appeal became final at which point it

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became clear that petitioner’s interpretation of the issue was the correct one).

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Here, petitioner asserts that the clerk of the court “continues to illegally take petitioner’s

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filing fee of $5.00” that has been made using the United States Postal Service Money Orders. As

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an example, he attaches a copy of a letter from a clerk of the court dated March 16, 2009,

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referring to an unrelated case of petitioner’s. (Ex. A.) However, the letter states that the court

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was returning twelve 42-cents postage stamps that petitioner sent in lieu of the $5.00 filing fee.

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(Id.) The letter explained that the court could not accept postage stamps in place of United

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States currency. Postage stamps are not the equivalent of a money order. Further, petitioner has

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provided no evidence that any filing fee was sent to pay for the underlying action, and the docket
Order Denying Motion for Reconsideration
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reveals that no such payment was ever received.
Petitioner has not demonstrated extraordinary circumstances. There is also no indication

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that petitioner has been diligent as he not only failed to communicate with the court after

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receiving the notice to pay the filing fee or file a motion for leave to proceed in forma pauperis,

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but he also then waited over four months after dismissal of this action to move for

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reconsideration. The court finds that the equitable factors provide little support reconsidering

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petitioner’s dismissal.

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Accordingly, the motion for reconsideration is DENIED (docket no. 8). Petitioner is not
precluded from filing a new action.
IT IS SO ORDERED.
DATED: _______________
RONALD M. WHYTE
United States District Judge

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Order Denying Motion for Reconsideration
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

FRANCISCO DOMINGUEZ,

Case Number: CV11-06309 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
MATTHEW CATE et al,
Defendant.

/

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 October 12, 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.

Francisco Dominguez F-22191
Sierra Conservation Center
5150 O’Byrnes Ferry Road
Jamestown, CA 95327-9102
Dated: October 12, 2012
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk