Hosmer v. Laxalt et al
Filing
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ORDER denying ECF Nos. 11 Motion/Application for Leave to Proceed in forma pauperis and 12 Motion for Decision (Win) for Plaintiff, By Default of Courts Mistake. Signed by Judge Miranda M. Du on 05/01/2017. (Copies have been distributed pursuant to the NEF - KW)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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***
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JEFFREY HOSMER,
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Case No. 3:17-cv-00064-MMD-VPC
Plaintiff,
ORDER
v.
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ADAM PAUL LAXALT, et al.,
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Defendants.
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I.
DISCUSSION
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On March 15, 2017, this Court dismissed Plaintiff’s case, without prejudice, for
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failure to file a fully complete application to proceed in forma pauperis or pay the full filing
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fee in compliance with this Court’s February 3, 2017, order. (ECF No. 9 at 3.) On April 4,
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2017, Plaintiff filed another incomplete application to proceed in forma pauperis and a
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letter which stated that the clerks “failed” to file his application to proceed in forma
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pauperis. (ECF No. 11; ECF No. 11-1 at 1.) That same day, Plaintiff filed a motion for
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decision for Plaintiff by default of Court’s mistake. (ECF No. 12 at 1.) In that motion,
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Plaintiff directs the Court to look at his post-conviction case filed March 8, 2017, Judge
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Miley’s order filed March 17, 2017, and his civil suit in 3:17-cv-56-RCJ-WGC. (Id.) Plaintiff
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argues that this demonstrates obvious misconduct of court clerks. (Id. at 2.) Plaintiff also
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filed a notice of appeal. (ECF No. 13.)
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On April 27, 2017, the Ninth Circuit issued an order stating that Plaintiff’s April 4,
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2017, filings “appear to contend that he did submit a timely application to proceed in forma
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pauperis, and may be requesting that the district court reconsider its March 15, 2017
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order.” (ECF No. 15 at 1.) The Ninth Circuit stated, “[a]lthough not labeled as such,
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[Plaintiff’s] April 4, 2017 filing may constitute one of the motions listed in Federal Rule of
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Appellate Procedure 4(a)(4).” (Id.) The Ninth Circuit stated that it would hold Plaintiff’s
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appellate case in abeyance “pending the district court’s consideration of whether
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[Plaintiff’s] April 4, 2017 filing constitutes one of the motions listed in Federal Rule of
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Appellate Procedure 4(a)(4) and, if so, whether the motion should [be] granted or denied.”
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(Id. at 1-2.)
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Federal Rule of Appellate Procedure 4(a)(4)(iv) provides: “If a party files in the
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district court [a motion to alter or amend the judgment under Federal Rule of Civil
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Procedure 59]—and does so within the time allowed by those rules—the time to file an
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appeal runs for all parties from the entry of the order disposing of the last such remaining
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motion.”
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The Court interprets Plaintiff’s April 4, 2017, motions as motions for
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reconsideration under Rule 59. A motion to reconsider must set forth “some valid reason
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why the court should reconsider its prior decision” and set “forth facts or law of a strongly
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convincing nature to persuade the court to reverse its prior decision.” Frasure v. United
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States, 256 F.Supp.2d 1180, 1183 (D. Nev. 2003). Reconsideration is appropriate if this
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Court “(1) is presented with newly discovered evidence, (2) committed clear error or the
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initial decision was manifestly unjust, or (3) if there is an intervening change in controlling
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law.” Sch. Dist. No. 1J v. Acands, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). “A motion for
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reconsideration is not an avenue to re-litigate the same issues and arguments upon which
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the court already has ruled.” Brown v. Kinross Gold, U.S.A., 378 F.Supp.2d 1280, 1288
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(D. Nev. 2005).
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The Court denies the motions for reconsideration (ECF Nos. 11, 12). As explained
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in the Court’s February 3, 2017, order, Plaintiff must complete an application to proceed
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in forma pauperis on this Court’s approved form and attach both an inmate account
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statement for the past six months and a properly executed financial certificate. (ECF No.
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3 at 1.) Plaintiff originally submitted an application to proceed in forma pauperis on a state
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court form and did not include any of the required attachments. (ECF No. 1.) After the
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Court dismissed the case, Plaintiff submitted the first three pages of this Court’s approved
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application to proceed in forma pauperis but did not submit a properly executed financial
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certificate on this Court’s approved form and did not submit an inmate account statement.
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(ECF No. 11.) Plaintiff’s references to his other cases do nothing to demonstrate his ability
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to file a fully complete application to proceed in forma pauperis in this case. Plaintiff must
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file a fully complete application to proceed in forma pauperis in each case he files. As
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such, the Court denies the motions for reconsideration (ECF Nos. 11, 12.)
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II.
CONCLUSION
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For the foregoing reasons, it is ordered that the Court construes the motions filed
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in ECF Nos. 11 and 12 as motions for reconsideration. So construed, the motions for
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reconsideration (ECF Nos. 11, 12) are denied.
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DATED THIS 1st day of May 2017.
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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
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