(HC) Ward v. Evans, No. 1:2010cv00633 - Document 21 (E.D. Cal. 2010)

Court Description: ORDER Denying Petitioner's Fourth 18 Motion to Proceed IFP; ORDER Clarifying due Date for Payment of the $5.00 Filing Fee; Deadline for Payment of Filing Fee: No Later than Fourteen (14) Days after the Date of Service of this Order; ORDER Informing Petitioner that Dismissal will Result if the Filing Fee is not Paid signed by Judge Oliver W. Wanger on 08/20/2010. Filing Fee Deadline: 9/7/2010. (Flores, E)
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(HC) Ward v. Evans Doc. 21 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 CRAIG ALLEN WARD, 11 Petitioner, 12 v. 13 ACTING WARDEN M. C. EVANS, 14 Respondent. 15 16 17 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—0633-OWW-SKO-HC ORDER DENYING PETITIONER’S “FOURTH” MOTION TO PROCEED IN FORMA PAUPERIS (DOC. 18) ORDER CLARIFYING DUE DATE FOR PAYMENT OF THE $5.00 FILING FEE Deadline for Payment of Filing Fee: NO LATER THAN FOURTEEN (14) DAYS AFTER THE DATE OF SERVICE OF THIS ORDER ORDER INFORMING PETITIONER THAT DISMISSAL WILL RESULT IF THE FILING FEE IS NOT PAID 18 19 20 Plaintiff is a state prisoner proceeding pro se and in forma 21 pauperis with a petition for writ of habeas corpus pursuant to 28 22 U.S.C. § 2254. 23 motion to proceed in forma pauperis (doc. 18), filed on July 2, 24 2010. Pending before the Court is Petitioner’s “Fourth” 25 I. Background 26 The petition was transferred to this Court on April 12, 27 2010, from the District of Northern California, action no. CV 10- 28 662-JF-(PR) (doc. 9), with an application to proceed in forma 1 Dockets.Justia.com 1 pauperis (doc. 5) pending at the time of the transfer. 2 Petitioner filed another motion to proceed in forma pauperis on 3 April 15, 2010 (doc. 11), which was denied by this Court by order 4 filed on May 5, 1020, because the documentation attached to 5 Petitioner’s application demonstrated that Petitioner was able to 6 afford the costs of the action. (Doc. 15.) The order was served 7 by mail on Petitioner on May 5, 2010. It specifically stated: 8 9 10 11 Petitioner is ORDERED to pay the five filing fee within thirty (30) days of of this order. Failure to follow this in a recommendation that the Petition pursuant to Local Rule 11-110. dollar ($5.00) the date of service order may result be dismissed (Id.) 12 By order filed May 24, 2010 (doc. 19), the Court denied a 13 renewed motion to proceed in forma pauperis (doc. 16) that had 14 been filed on May 17, 2010, and reminded Petitioner that the 15 filing fee was due to be paid on June 8, 2010. 16 fee was not paid, findings and recommendations were filed by the 17 Magistrate Judge to dismiss the petition. 18 When the filing It then was discovered that the Clerk failed to serve on 19 Petitioner the order denying Petitioner’s renewed motion. 20 findings and recommendations were vacated, and the clerk served 21 on Petitioner the order denying the renewed motion to proceed in 22 forma pauperis on July 28, 2010. The 23 II. 24 The order vacating the findings and recommendations directed Clarification of Due Date for Filing Fee 25 that Petitioner be served with the order denying Petitioner’s 26 renewed motion. 27 turn reminded Petitioner that pursuant to the Court’s previous 28 order of May 5, 2010 (doc. 15: 21-22), the deadline for payment The order denying Petitioner’s renewed motion in 2 1 of the filing fee was thirty days after service of the Court’s 2 order of May 5. 3 2010, was served on Petitioner at the address listed as 4 Petitioner’s on the docket, and the order was not returned in the 5 mail. 6 The docket reflects that the order of May 5, Independently of any clerical error, Petitioner failed to 7 pay the filing fee or seek an extension of time within the 8 thirty-day period after May 5, 2010. 9 filing fee, and Petitioner’s payment of the filing fee is thus 10 11 Petitioner did not pay the long overdue. However, in light of foregoing history, the Court CLARIFIES 12 its previous orders and INFORMS Petitioner that unless the filing 13 fee is paid no later than fourteen (14) days after the date of 14 service of this order, the action will be dismissed. 15 III. 16 In a motion filed on July 2, 2010, Petitioner again asserts “Fourth” Motion to Proceed in Forma Pauperis 17 that a case in the Northern District, case C-10-0659-WHA (PR), 18 was transferred here and assigned case number 1:10 cv 00633-OWW- 19 SKO, the number of the present proceeding. 20 that in that case, an application to proceed in forma pauperis 21 was granted in the Northern District. 22 an order of transfer in Northern District case number C-10-0662- 23 RS-(PR), which effects the transfer of that action to this Court, 24 where it was given the case number of the matter before the 25 Court, namely, 1:10-cv-00633-OWW-SKO-HC. (Doc. 18 pp. 13-14.) 26 Also attached to the renewed motion is an order in the other 27 Northern District case, case number C-10-659-WHA-(PR), granting 28 leave to proceed in forma pauperis. (Doc. 18, 13.) That order was 3 Petitioner asserts Attached to the motion is 1 dated May 5, 2010. 2 It thus appears that Petitioner has submitted an order from 3 a different proceeding in the Northern District--i.e., one which 4 did not become the present proceeding upon transfer--in which a 5 court exercised its discretion to grant an application to proceed 6 in forma pauperis. 7 Title 28 U.S.C. § 1915(a)(1) provides that any court of the 8 United States may authorize the commencement, prosecution of 9 defense of any civil or criminal suit, action, proceeding, or any 10 appeal therein, without prepayment of fees or security therefor, 11 by a person who submits an affidavit that includes a statement of 12 all assets the person possesses and that the person is unable to 13 pay such fees or give security therefor. 14 States Postal Service, 105 F.3d 274, 275-77 (6th Cir. 1997), 15 modified on other grounds in Callihan v. Schneider, 178 F.3d 800, 16 801 (6th Cir. 1999). 17 litigant be destitute; rather, a party must not be required to 18 choose either to abandon a potentially meritorious claim or to 19 forego the necessities of life. 20 Hospital, 701 F.2d 243, 244 (2nd Cir. 1983) (citing Adkins v. 21 E.I. DuPont de Nemours & Co., Inc., 335 U.S. 331, 339, (1948)). Id.; Floyd v. United Section 1915(a) does not require that the Potnick v. Eastern State 22 In the motion before the Court, Petitioner has not 23 demonstrated that he is required to choose to abandon a 24 potentially meritorious claim or forego the necessities of life. 25 Petitioner has not shown that he is unable to afford the costs of 26 this action. 27 28 If Petitioner’s motion is considered a motion for reconsideration pursuant to Federal Rule of Civil Procedure, Rule 4 1 59(e), see, United States v. Westlands Water Dist., 134 F.Supp.2d 2 1111, 1130 (E.D. Cal. 2001), then Petitioner has not demonstrated 3 grounds sufficient to warrant relief pursuant to Fed. R. Civ. P. 4 59(e), which is appropriate when there are highly unusual 5 circumstances, the district court is presented with newly 6 discovered evidence, the district court committed clear error, or 7 a change in controlling law intervenes. 8 Multnomah County, Oregon v. AcandS, Inc., 5 F.3d 1255, 1262 (9th 9 Cir. 1993). 10 School Dist. No. 1J, Federal Rule of Civil Procedure 60(b), which governs the 11 reconsideration of final orders of the district court, permits a 12 district court to relieve a party from a final order or judgment 13 on grounds including but not limited to 1) mistake, inadvertence, 14 surprise, or excusable neglect; 2) newly discovered evidence; 3) 15 fraud, misrepresentation, or misconduct by an opposing party; or 16 4) any other reason justifying relief from the operation of the 17 judgment. 18 corpus proceedings. 19 36 (2005). 20 change in controlling law, the availability of new evidence or an 21 expanded factual record, or the need to correct a clear error or 22 prevent manifest injustice. 23 Bakersfield, 634 F.Supp. 656, 665 (E.D.Cal. 1986), aff’d in part 24 and rev’d in part on other grounds, 828 F.2d 514 (9th Cir. 1987). 25 A party seeking reconsideration must show more than a 26 disagreement with the Court's decision and offer more than a 27 restatement of the cases and arguments considered by the Court 28 before rendering the original decision. Fed. R. Civ. P. 60(b) generally applies to habeas See, Gonzalez v. Crosby, 545 U.S. 524, 530- Relief may be granted in the event of an intervening Kern-Tulare Water Dist. v. City of 5 United States v. 1 Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001). 2 Motions to reconsider pursuant to Rule 60(b)(1) are committed to 3 the discretion of the trial court, Rodgers v. Watt, 722 F.2d 456, 4 460 (9th Cir. 1983). 5 If Petitioner’s renewed motion is considered to be an 6 application pursuant to Fed. R. Civ. P. 60(b), then Petitioner 7 has failed to demonstrate any grounds for relief. 8 9 10 Further, Petitioner has failed to comply with Local Rule 230(j), which governs the procedures to be followed with respect to motions for reconsideration. 11 IV. 12 Accordingly, it is ORDERED that 13 1) Petitioner’s “Fourth” motion to proceed in forma pauperis 14 15 Disposition is DENIED; and 2) The filing fee IS DUE no later than fourteen (14) days 16 after the date of service of this order; and 17 3) Petitioner IS INFORMED that if the filing fee is not timely paid, then the action WILL BE DISMISSED.IT IS SO ORDERED. 18 19 Dated: August 20, 2010 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 6