Free Order on Motion for Leave to Proceed in forma pauperis - District Court of California - California

Case 3:08-cv-00016-BEN-LSP

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1 2 3 4 5 6 7 8 9 10 11 12 13 v. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ROBERT HERNANDEZ, Warden, Respondent. FELIX CAMACHO, Petitioner, ORDER: (1) DENYING IN FORMA PAUPERIS APPLICATION AND DISMISSING CASE WITHOUT PREJUDICE [doc. no. 5; and (2) DENYING MOTION FOR RECONSIDERATION [doc. no. 6] Civil No. 08-0016 BEN (LSP) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

On January 2, 2008, Petitioner, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. On January 8, 2008, the Court dismissed the petition because Petitioner had failed to either pay the $5.00 filing fee or move to proceed in forma pauperis. (See Order dated Jan. 8, 2008 [doc. no.4].) Petitioner was given until March 14, 2008 to either pay the $5.00 filing fee or submit adequate proof of his inability to pay the fee. MO TION TO PROCEED IN FORMA PAUPERIS On January 18, 2008, Petitioner filed a motion to proceed in forma pauperis and a trust account statement reflecting a $18.20 balance in his prison trust account. The filing fee associated with this type of action is $5.00. See 28 U.S.C. § 1914(a). Thus, it appears Petitioner can pay the requisite filing fee. Accordingly, the Court DENIES the request to proceed in forma pauperis, and DISMISSES the case without prejudice and with leave to amend. -108cv0016

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Case 3:08-cv-00016-BEN-LSP

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MOTION FOR RECONSIDERATION Petitioner has also filed a motion for reconsideration of the Court's January 8, 2008, dismissal order. Petitioner contends that he cannot comply with the Court's dismissal orders because the officials at Donovan State Prison refuse to give him trust account statements without a court order or case number. (See Mtn. for Reconsid. [doc. no. 6.] at 1-2; Pet. for Order for Cert. of Prison Trust Acct. [doc. no. 2] at 1.) A motion for reconsideration is appropriate "if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." School District No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993) (citing All Hawaii Tours, Corp. v. Polynesian Cultural Center, 116 F.R.D. 645, 648 (D.Hawaii 1987), rev'd on other grounds , 855 F.2d 860 (9th Cir.1988)). Petitioner has not satisfied his burden. Despite his claims, Petitioner has succeeded in providing four sets of trust account statements to the Court with his current filing. (See Mot. to Proceed In Forma Pauperis [doc. no. 5] at Ex. A.) Moreover, Petitioner now has a current case number and two court orders directing that he provide the Court with current a trust account statement. (See Order dated Jan. 8, 2008 [doc. no. 4] and this Order.) Petitioner's motion does not contain any newly discovered evidence which alters this conclusion, there has not been an intervening change of controlling law, nor has the Court committed clear error or rendered a decision which is manifestly unjust. Accordingly, his motion for reconsideration is DENIED. CONCLUSION For the foregoing reasons, Petitioner's motion to proceed in forma pauperis is DENIED without prejudice. If Petitioner wishes to proceed with this case, he must, no later than March 31, 2008, either pay the $5.00 filing fee or submit adequate proof of his inability to pay the fee. /// /// ///

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08cv0016

Case 3:08-cv-00016-BEN-LSP

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Filed 01/25/2008

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THE CLERK OF COURT IS DIRECTED TO MAIL PETITIONER A BLANK MOTION TO PROCEED IN FORMA PAUPERIS FORM. In addition, Petitioner's motion for reconsideration [doc. no. 6] is DENIED. IT IS SO ORDERED.

DATED: January 25, 2008

Hon. Roger T. Benitez United States District Judge

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