(HC) Molen v. Graber, No. 2:2015cv02141 - Document 23 (E.D. Cal. 2016)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 11/7/2016 RECOMMENDING that petitioner's 20 motion to reopen this case be denied. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days.(Yin, K)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES O. MOLEN, 12 Petitioner, 13 14 No. 2:15-cv-2141 KJM KCD P v. FINDINGS AND RECOMMENDATIONS CONRAD M. GRABER, 15 Respondent. 16 Petitioner, a United States prisoner proceeding pro se, has filed a motion asking that this 17 18 case be reopened. On September 27, 2016, this action was dismissed because: (1) petitioner 19 failed to pay the filing fee or file an application to proceed in forma pauperis; and (2) the relief 20 sought by petitioner must be sought in a 28 U.S.C. § 2255 motion filed in 2:12-cr-0252 TLN. 21 The district court judge has referred the motion to the undersigned. 22 The court may reconsider a ruling under either Federal Rule of Civil Procedure 59(e) or 23 60(b). See Sch. Dist. Number. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1262 (9th 24 Cir. 1993). “Reconsideration is appropriate if the district court (1) is presented with newly 25 discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) 26 if there is an intervening change in controlling law.” Id. at 1263. 27 ///// 28 ///// 1 1 Petitioner does not present newly discovered evidence suggesting this matter should not 2 be dismissed and the law has not changed. Furthermore, the decision to dismiss the case is not 3 clearly erroneous or manifestly unjust. 4 After reviewing the record, the court notes it appears at least possible that petitioner 5 attempted to pay the filing fee for this action. See ECF No. 17 at 2 & 6. However, this is still not 6 the appropriate action for the relief sought. 7 8 Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s October 17, 2016 motion to reopen this case be denied. 9 These findings and recommendations are submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 11 after being served with these findings and recommendations, any party may file written 12 objections with the court and serve a copy on all parties. Such a document should be captioned 13 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 14 objections shall be served and filed within fourteen days after service of the objections. The 15 parties are advised that failure to file objections within the specified time may waive the right to 16 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 Dated: November 7, 2016 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 1 mole2141.57 24 25 26 27 28 2
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