Grindling v. Shores et al

Filing 6

ORDER DENYING RECONSIDERATION re 4 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 5/9/2014. "Plaintiff's Motion for Reconsideration of the April 24, 2014, Deficiency Order is DENIED. Plaintiff is NOTIFIED that, to avoid th e automatic dismissal of this action, he must pay the entire civil filing fee of $400 or submit an in forma pauperis application on or before May 24, 2014. In the alternative, Plaintiff may move to voluntarily dismiss this action before his c omplaint is screened." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electro nic Filing (NEF). Chris Grindling served by first class mail at the address of record on May 9, 2014. A copy of the court's Application to Proceed in Forma Pauperis by a Prisoner form and it's instructions were included in the mailing to Mr. Grindling.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CHRIS GRINDLING, #A0721079,

)
)
Plaintiff,
)
)
vs.
)
)
ACO SHORES, et al.,
)
)
)
Defendants.
_____________________________ )

CIV. NO. 14-00198 SOM/RLP
ORDER DENYING RECONSIDERATION

ORDER DENYING RECONSIDERATION
Plaintiff, a prisoner proceeding pro se, commenced this
civil rights action by filing a complaint on April 22, 2014.
Compl., Doc. No. 1.

He now moves for reconsideration of the

April 24, 2014, Deficiency Order notifying him that he must pay
the filing fee or submit an in forma pauperis (“IFP”) application
within thirty days or risk dismissal of this action.
Doc. No. 3.

See Order,

Plaintiff alleges that he gave an IFP application to

Maui Community Correctional Center (“MCCC”) by delivering the
document to “Major Taylor to mail to court in a stamped
envelope,” on or about March 12, 2014, and that “the $350.000
filing fee was already mailed to court.”

Mot., Doc. No. 4 at

PageID #22; see also Compl., Doc. No. 1, PageID #11 (“On March
12, 2014 $350.00 was sent to this court for filing fee in this
matter IFP was also sent.”).

Plaintiff suggests this was done in

payment for this action and submits a copy of his prison trust
account statement showing that $350 was deducted from his account
on March 12, 2014, and marked for “U.S. District Hawaii.”

See

id., Ex. A.

Plaintiff seeks reconsideration of the Deficiency

Order’s finding that he failed to pay or file an IFP application
in this action and must do so to continue with this action.
I.

Legal Standard

Because judgment has not been entered, the court
construes this as a motion for reconsideration of an
interlocutory order brought pursuant to Local Rule LR60.1.

A

successful motion for reconsideration must demonstrate some
reason that the court should reconsider its prior decision and
set forth facts or law of a strongly convincing nature to induce
the court to reverse its prior decision.
F. Supp. 2d 1271, 1274 (D. Haw. 2006).

White v. Sabatino, 424

Three grounds justify

reconsideration: (1) an intervening change in controlling law;
(2) the availability of new evidence; and (3) the need to correct
clear error or prevent manifest injustice.

Id. (citing Mustafa

v. Clark County Sch. Dist., 157 F.3d 1169, 1178-79 (9th Cir.
1998)).
II.

Background

Plaintiff has litigated numerous cases in this court,1
in the District of Arizona,2 and in the Ninth Circuit Court of
1

See, e.g., Civ. Nos. 02-00144; 03-00054; 05-00694;
06-00438; 06-00460; 06-00461; 07-00502; 07-00561 DAE; 09-00243
ACK; 09-00339 ACK; 09-00536 JMS; 09-00547 DAE; 10-00429 KSC;
11-00190; 12-00361; 13-00057; 14-00098; 14-00198.
2

See, e.g., Civ. Nos. 09-02395-PHX; 09-02635-PHX; 10-02366PHX; 11-00611-PHX; 11-01496-PHX.
2

Appeals.3

Because he is a prisoner, he is obligated to pay the

full civil filing fee in each case he commences, regardless of
whether he has been granted IFP status.4
§ 1915(a)(2).

See 28 U.S.C.

Plaintiff has accrued three strikes pursuant to 28

U.S.C. § 1915(g), and may not proceed with IFP status without a
plausible allegation that he was in imminent danger of serious
physical injury when he filed the complaint at issue.
also

Id.; see

Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007).

A review of the dockets in Plaintiff’s cases reveals that he has
paid some filing fees outright, has been granted IFP status in
others, and has paid nothing in other cases and appeals, usually
when the case was summarily dismissed within days of filing
without regard to payment issues, or when he abandoned an appeal
after his IFP application was denied.

The court has notified

Plaintiff many times about § 1915’s payment requirements for
prisoners and about his accrual of three strikes.
On February 27, 2014, Plaintiff filed a Notice of
Removal in this court, removing his own civil rights case from
the Circuit Court of the Second Circuit, State of Hawaii to the

3

See, e.g., App. Nos. 13-70449; 08-15048; 08-15095;
08-15132; 08-15134; 08-15136; 09-15512; 09-72519; 10-15010;
10-70238; 10-71740; 10-16344; 10-16456; 11-15615; 11-70945;
11-15823; 11-16094; 11-16812; 11-17044; 12-15298.
4

Plaintiff is not required to pay a filing fee in cases
that defendants remove from state court. See, e.g., Civ. Nos.
06-00438 DAE; 06-00460 JMS; 06-00461 JMS.
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federal court.
SOM/BMK.

See Grindling v. Fong, et al., Civ. No. 14-00098

Because Plaintiff submitted neither a civil filing fee

nor an IFP application with this filing, a Deficiency Order was
immediately issued notifying him that he must pay the filing fees
or submit an IFP application to avoid dismissal.

See id., Doc.

No. 3.
On March 4, 2014, however, this court screened
Plaintiff’s removal documents under 28 U.S.C. § 1915(e)(1) and
summarily remanded the case to the state court pursuant to 28
U.S.C. § 1447(c).

Id., Order, Doc. No. 4 (finding that a

plaintiff may not remove his own action from state to federal
court).

Meanwhile, on March 12, 2014, seemingly in response to

the Deficiency Order entered on February 27, 2014, and unaware
that his action had been remanded, Plaintiff directed MCCC prison
authorities to deduct $350 from his prison trust account and send
that amount to this court.
4, Pl.’s Ex. A.

See Civ. No. 14-00198 SOM, Doc. No.

On March 17, 2014, the court received

Plaintiff’s check; it was not accompanied by an IFP application
as Plaintiff alleges.

The Clerk first tied this $350 payment to

Civ. No. 09-00547, because that case still had an open account.
Within days, however, when the Clerk discovered that no balance
was owed in Civ. No. 09-00547, the $350 was credited to Civ. No.
14-00098 SOM, Plaintiff’s most recent filing in which he owed
money (not to be confused with the present case, which has a

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similar case number).

Because Plaintiff was not proceeding IFP

in Civ. No. 14-00098 SOM, the fee for commencing the action is
$400, and there remains a $50 balance owed.

See 28 U.S.C.

§ 1914, District Court Miscellaneous Fee Schedule ¶14 (eff. Dec.
1, 2013) (explaining that all civil litigants, except those
proceeding IFP or pursuing habeas relief, must pay a $50
administrative fee in addition to the civil filing fees).
On April 22, 2014, more than a month after he sent the
$350, Plaintiff filed the Complaint in the present action without
submitting the filing fee or an IFP application.

Plaintiff notes

on the last page of the Complaint that he sent an IFP application
with $350 on March 12, 2014, suggesting that it was meant for
this as-yet-unopened action, rather than as payment in Civ. No.
14-00098 SOM.

See Compl., PageID #11.
III.

Discussion

Plaintiff argues that he paid the fee for this action
because he directed prison authorities to send $350 to the court
on March 12, 2014.

Nonetheless, the $350 that he sent to the

court before he filed or even signed the present Complaint was
properly credited toward what he owed in Civ. No. 14-00098 SOM.
Plaintiff chose to remove his case from state court and is
responsible for any fees he incurred in doing so.

Plaintiff may

be confused because he did not pay filing fees in other removed
actions and hoped to avoid § 1915’s restrictions and requirements

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for prisoners by removing this case rather than originally filing
it in the federal court.

However, his previous removed actions

were properly removed from state court and paid for by the
defendants.

See Grindling v. Nouchi, Civ. No. 06-00438 DAE;

Grindling v. Loo, Civ. No. 06-00460 JMS; Grindling v. Silva, Civ.
No. 06-00461 DAE.
To date, Plaintiff has paid no filing fee for
commencing this action, nor has the court received any IFP
application from him in either case.

In addition, Plaintiff also

owes at least: (1) $335 for the appeal fee in Civ. No. 09-01685
PHX; (2) $40 for the filing fee in Civ. 09-02395 PHX and $455 for
its appeal fee; (3) $178.66 for the filing fee in Civ. No. 1002366 PHX; (4) $455 for the appeal fee in Civ. No. 11-01496 PHX;
and (5) $50 for the administrative fee in Civ. No. 14-00098 SOM.
He has also filed several cases in which he was technically
required to pay a filing fee, but a fee was never assessed
because the cases were summarily dismissed before any payment was
received.

See, e.g., Civ. No. 09-00339 ACK (case dismissed, IFP

denied on appeal, no fees paid); Civ. No. 09-02635 PHX (no fees
paid, case dismissed).
Although the court declines to determine and seek
payment for the total amount Plaintiff may owe in cases filed
before 2014, he will be assessed filing fees in any cases he
files in 2014 or after, in which a Deficiency Order or Order

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denying IFP has been issued, and in which he has not moved for
and been granted voluntary dismissal without payment of fees
before the court takes any significant action on his pleadings,
such as screening under 28 U.S.C. § 1915(e)(1) or ¶ 1915A(a).
Plaintiff provides no intervening change of law holding
that litigants who remove an action from the state court are not
required to pay filing fees, or that the court must accept and
hold filing fees for an as-yet-unfiled action, particularly when
the litigant has an outstanding balance owed in another action.
He provides no competent evidence that he sent the $350 for the
present action, which had not yet been opened or apparently even
contemplated, as judged by the date the Complaint was signed.
Plaintiff provides nothing suggesting the court erred in
accepting the $350 as his response to the Deficiency Order in
Civ. No. 14-00098 SOM and applying it to that case.
Finally, Plaintiff’s prison trust account statement
reveals that he had $4,615.21 in his account when he sent $350 to
this court on March 12 and $2,320.85 on March 28, 2014. See Ex.
A, Doc. No. 4-1.

He was not entitled to IFP status in March and

it is unlikely that he was eligible for it when he commenced this
action or is eligible now.

Plaintiff provides no persuasive

reasons for reconsideration of the Deficiency Order and his
Motion for Reconsideration is DENIED.

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IV.

Conclusion

Plaintiff’s Motion for Reconsideration of the April 24,
2014, Deficiency Order is DENIED.

Plaintiff is NOTIFIED that, to

avoid the automatic dismissal of this action, he must pay the
entire civil filing fee of $400 or submit an in forma pauperis
application on or before May 24, 2014.

In the alternative,

Plaintiff may move to voluntarily dismiss this action before his
complaint is screened.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 9, 2014.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Grindling v. ACO Shores, 1:14-cv-00198 SOM/RLP; Order; recon/dmp2014/Grindling 14-198;
J:\Denise's Draft Orders\SOM\Grindling, 14-198 som (dny inter. recon of dfcy. ord).wpd

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