Espinosa v. Johnson

• Court: District Court, D. Nevada
• Decided: April 4, 2023
• Docket: 2:23-cv-00125
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA

3 BENJAMIN ESPINOSA, Case No. 2:23-cv-00125-GMN-BNW

4 Plaintiff ORDER

5 v.

6 CALVIN JOHNSON, et al.,

7 Defendants

8 9 10 I. DISCUSSION 11 On January 30, 2023, the Court issued an order denying Plaintiff’s application to 12 proceed in forma pauperis because it was incomplete. (ECF No. 3). Plaintiff did not file 13 an application on this Court’s approved form and did not include a financial certificate and 14 an inmate trust fund account statement for the previous six-month period with the 15 application. (Id.) The Court gave Plaintiff an opportunity to correct these deficiencies by 16 March 27, 2023. (Id.) 17 In response, Plaintiff filed a motion for reconsideration (ECF No. 4) stating that he 18 filed a kite and tried several times to attain a six-month account statement and a financial 19 certificate but nobody in inmate accounting has sent him those documents. (Id. at 3). 20 A motion to reconsider must set forth “some valid reason why the court should 21 reconsider its prior decision” and set “forth facts or law of a strongly convincing nature to 22 persuade the court to reverse its prior decision.” Frasure v. United States, 256 F.Supp.2d 23 1180, 1183 (D. Nev. 2003). Reconsideration is appropriate if this Court “(1) is presented 24 with newly discovered evidence, (2) committed clear error or the initial decision was 25 manifestly unjust, or (3) if there is an intervening change in controlling law.” Sch. Dist. 26 No. 1J v. Acands, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). 27 The Court denies the motion for reconsideration because the Court did not commit 28 clear error in its prior order. Plaintiff still has not filed an application to proceed in forma pauperis on this Court’s approved form. Additionally, Plaintiff's kite is from October 30, 2| 2022, and he initiated this case on January 24, 2023. (ECF No. 1 at 7). The Court acknowledges that, on October 31, 2022, the prison staff responded that inmate banking 4| was short staffed. (/d.) Although Plaintiff states he has not received the documents he 5 | needs, he needs to try again to acquire his financial certificate and inmate accounting 6 | statement. The Court grants Plaintiff until May 12, 2023, to file a fully complete application 7 | to proceed in forma pauperis on this Court’s approved form. 8] Il. CONCLUSION 9 IT IS THEREFORE ORDERED that the motion for reconsideration (ECF No. 4) is denied. 11 IT IS FURTHER ORDERED that Plaintiff has until May 12, 2023, to either pay the 12 | full $402 filing fee or file a new fully complete application to proceed in forma pauperis with all three required documents: (1) a completed application with Plaintiff's two signatures on page 3, (2) a completed financial certificate that is signed both by Plaintiff 15 | and the prison or jail official, and (3) a copy of Plaintiff's trust fund account statement for the previous six-month period. 17 Plaintiff is cautioned that this action will be subject to dismissal without prejudice if he fails to timely comply with this order. A dismissal without prejudice allows Plaintiff to refile the case with the Court, under a new case number, when Plaintiff can file a complete application to proceed in forma pauperis or pay the required filing fee. 21 IT IS FURTHER ORDERED that the Clerk of the Court is directed to send Plaintiff the approved form application to proceed in forma pauperis for an incarcerated person 23 | and instructions for the same. 24 25 DATED: April 4, 2023. sg Le Ue pat 26 BRENDA WEKSLER. UNITED STATES MAGISTRATE JUDGE 28

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