Perlaza v. Warden

Filing 5

ORDER : (1) Denying Motion for Reconsideration [ECF no. #4 ]; and (2) Granting Extension of Time to File In Forma Pauperis Application or Pay Filing Fee. Signed by Judge Cathy Ann Bencivengo on 6/3/2024. (All non-registered users served via U.S. Mail Service)(IFP with affidavit mailed with Order)(anh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RUBEN DARIO PERLAZA,
Petitioner,

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Case No.: 3:24-cv-0760-CAB-AHG
ORDER: (1) DENYING MOTION
FOR RECONSIDERATION [ECF No.
4]; AND

v.

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(2) GRANTING EXTENSION OF
TIME TO FILE IN FORMA
PAUPERIS APPLICATION OR PAY
FILING FEE

WARDEN,

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Respondent.

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INTRODUCTION

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On April 22, 2024, Petitioner, a federal prisoner proceeding pro se, filed a Petition

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for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241,1 along with an application to

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proceed in forma pauperis (“IFP”). ECF Nos. 1, 2. On April 30, 2024, the Court denied the

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IFP request and dismissed the action without prejudice because Petitioner failed provide

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Petitioner was convicted in a criminal case before this Court, and sentenced to a Bureau of Prisons term
of 56 months on March 23, 2022. See 3:21-cr-0637-GPC, ECF No. 141. On April 22, 2024, Petitioner
filed a “Motion to Reduce Sentence Pursuant to 18 U.S.C. 3582(c)” in that case. ECF No. 167. That motion
is still pending. See ECF Nos. 171, 172.
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3:24-cv-0760-CAB-AHG

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the required support for his IFP motion. ECF No. 3. The Court gave Petitioner until June

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14, 2024 to either pay the $5.00 filing fee or provide adequate proof of his inability to pay.

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See id. On May 30, 2024, Petitioner filed a “Motion for Reconsideration” of the Court’s

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order denying IFP and dismissing the action. ECF No. 4.

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MOTION FOR RECONSIDERATION

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In his Motion for Reconsideration, Petitioner states he “is ‘in forma pauperis’ status

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in front of this Honorable Court in a criminal matter.” Id. at 1. He also notes that he did not

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receive a copy of the Court’s form IFP application. Id.

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The Court construes the Motion for Reconsideration under Rule 60(b) of the Federal

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Rules of Civil Procedure. See Elias v. Wolf, 2020 WL 10790290, at *2 (C.D. Cal. Sept. 17,

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2020) (“A motion seeking reconsideration of a denial of leave to file a complaint IFP may

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be construed as one arising under Rule 60(b)”). Under Rule 60(b), relief from a judgment

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or order is available for: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly

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discovered evidence; (3) fraud, misrepresentation, or misconduct by the opposing party;

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(4) voiding of the judgment; (5) satisfaction of the judgment; or (6) “any other reason that

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justifies relief.” See Fed. R. Civ. P. 60(b). “Motions for relief from judgment pursuant to

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Rule 60(b) are addressed to the sound discretion of the district court and will not be

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reversed absent an abuse of discretion.” Casey v. Albertson’s Inc., 362 F.3d 1254, 1257

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(9th Cir. 2004).

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Here, Plaintiff has failed to meet any of the requirements of Rule 60(b). As noted in

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the Court’s previous Order, an indigent prisoner may initiate a habeas action without

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paying the $5 fee if he submits an IFP application that includes the following: (a) the

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prisoner’s financial declaration and acknowledgement showing an inability to prepay fees

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and costs, (b) a financial certificate signed by the prisoner and an authorized prison official,

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and (c) a copy of the prisoner’s account statement for the six-month period prior to filing.

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See 28 U.S.C. § 1915(a); CivLR 3.2(b), (g). Petitioner has only submitted the affidavit and

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as such, has failed to meet the requirements set forth in § 1915(a). There is no basis for

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reconsideration of the denial of Petitioner’s IFP motion. Therefore, the motion for
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reconsideration is DENIED. In the interest of justice, however, the Court sua sponte

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GRANTS Petitioner an extension of time to submit a properly supported IFP motion or to

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pay the $5.00 filing fee.

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CONCLUSION AND ORDER

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Based on the above, the Court DENIES the motion for reconsideration. ECF No. 4.

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And while the case remains dismissed, the Court GRANTS Petitioner until no later than

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July 12, 2024 to have his case reopened by either submitting a properly supported IFP

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motion or paying the $5.00 filing fee. For Petitioner’s convenience, the Clerk of Court

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shall send Petitioner a blank Southern District of California in forma pauperis

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application which contains the proper affidavit along with a copy of this Order.
IT IS SO ORDERED.
Dated: June 3, 2024

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3:24-cv-0760-CAB-AHG