Hosmer v. Laxalt et al

Filing 16

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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 JEFFREY HOSMER, 10 Case No. 3:17-cv-00064-MMD-VPC Plaintiff, ORDER v. 11 ADAM PAUL LAXALT, et al., 12 Defendants. 13 14 I. DISCUSSION 15 On March 15, 2017, this Court dismissed Plaintiff’s case, without prejudice, for 16 failure to file a fully complete application to proceed in forma pauperis or pay the full filing 17 fee in compliance with this Court’s February 3, 2017, order. (ECF No. 9 at 3.) On April 4, 18 2017, Plaintiff filed another incomplete application to proceed in forma pauperis and a 19 letter which stated that the clerks “failed” to file his application to proceed in forma 20 pauperis. (ECF No. 11; ECF No. 11-1 at 1.) That same day, Plaintiff filed a motion for 21 decision for Plaintiff by default of Court’s mistake. (ECF No. 12 at 1.) In that motion, 22 Plaintiff directs the Court to look at his post-conviction case filed March 8, 2017, Judge 23 Miley’s order filed March 17, 2017, and his civil suit in 3:17-cv-56-RCJ-WGC. (Id.) Plaintiff 24 argues that this demonstrates obvious misconduct of court clerks. (Id. at 2.) Plaintiff also 25 filed a notice of appeal. (ECF No. 13.) 26 On April 27, 2017, the Ninth Circuit issued an order stating that Plaintiff’s April 4, 27 2017, filings “appear to contend that he did submit a timely application to proceed in forma 28 pauperis, and may be requesting that the district court reconsider its March 15, 2017 1 order.” (ECF No. 15 at 1.) The Ninth Circuit stated, “[a]lthough not labeled as such, 2 [Plaintiff’s] April 4, 2017 filing may constitute one of the motions listed in Federal Rule of 3 Appellate Procedure 4(a)(4).” (Id.) The Ninth Circuit stated that it would hold Plaintiff’s 4 appellate case in abeyance “pending the district court’s consideration of whether 5 [Plaintiff’s] April 4, 2017 filing constitutes one of the motions listed in Federal Rule of 6 Appellate Procedure 4(a)(4) and, if so, whether the motion should [be] granted or denied.” 7 (Id. at 1-2.) 8 Federal Rule of Appellate Procedure 4(a)(4)(iv) provides: “If a party files in the 9 district court [a motion to alter or amend the judgment under Federal Rule of Civil 10 Procedure 59]—and does so within the time allowed by those rules—the time to file an 11 appeal runs for all parties from the entry of the order disposing of the last such remaining 12 motion.” 13 The Court interprets Plaintiff’s April 4, 2017, motions as motions for 14 reconsideration under Rule 59. A motion to reconsider must set forth “some valid reason 15 why the court should reconsider its prior decision” and set “forth facts or law of a strongly 16 convincing nature to persuade the court to reverse its prior decision.” Frasure v. United 17 States, 256 F.Supp.2d 1180, 1183 (D. Nev. 2003). Reconsideration is appropriate if this 18 Court “(1) is presented with newly discovered evidence, (2) committed clear error or the 19 initial decision was manifestly unjust, or (3) if there is an intervening change in controlling 20 law.” Sch. Dist. No. 1J v. Acands, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). “A motion for 21 reconsideration is not an avenue to re-litigate the same issues and arguments upon which 22 the court already has ruled.” Brown v. Kinross Gold, U.S.A., 378 F.Supp.2d 1280, 1288 23 (D. Nev. 2005). 24 The Court denies the motions for reconsideration (ECF Nos. 11, 12). As explained 25 in the Court’s February 3, 2017, order, Plaintiff must complete an application to proceed 26 in forma pauperis on this Court’s approved form and attach both an inmate account 27 statement for the past six months and a properly executed financial certificate. (ECF No. 28 3 at 1.) Plaintiff originally submitted an application to proceed in forma pauperis on a state 2 1 court form and did not include any of the required attachments. (ECF No. 1.) After the 2 Court dismissed the case, Plaintiff submitted the first three pages of this Court’s approved 3 application to proceed in forma pauperis but did not submit a properly executed financial 4 certificate on this Court’s approved form and did not submit an inmate account statement. 5 (ECF No. 11.) Plaintiff’s references to his other cases do nothing to demonstrate his ability 6 to file a fully complete application to proceed in forma pauperis in this case. Plaintiff must 7 file a fully complete application to proceed in forma pauperis in each case he files. As 8 such, the Court denies the motions for reconsideration (ECF Nos. 11, 12.) 9 II. CONCLUSION 10 For the foregoing reasons, it is ordered that the Court construes the motions filed 11 in ECF Nos. 11 and 12 as motions for reconsideration. So construed, the motions for 12 reconsideration (ECF Nos. 11, 12) are denied. 13 DATED THIS 1st day of May 2017. 14 15 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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