Hill v. Mendosa

• Court: District Court, N.D. California
• Decided: June 14, 2021
• Docket: 4:20-cv-07375
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 CYMEYON V. HILL, 7 Case No. 20-cv-07375-YGR (PR) Plaintiff, 8 ORDER GRANTING PLAINTIFF’S v. MOTION FOR RECONSIDERATION; 9 REOPENING CASE; AND DIRECTING DIETICIAN MENDOSA, PLAINTIFF TO COMPLETE NON- 10 PRISONER APPLICATION FOR Defendant. LEAVE TO PROCEED IN FORMA 11 PAUPERIS

12 This civil rights action was dismissed without prejudice by the Court on December 7, 13 2020. Dkt. 3. The Court concluded that dismissal was required because Plaintiff failed to submit 14 a timely application for leave to proceed in forma pauperis (“IFP”) by the November 30, 2020 15 deadline as set by the Clerk’s notice dated October 21, 2020. Id. at 1. Plaintiff now seeks 16 reconsideration of the dismissal by filing motion for reconsideration under Rule 60(b) of the 17 Federal Rules of Civil Procedure. Dkt. 5. 18 Where the district court’s ruling has resulted in a final judgment or order, a motion for 19 reconsideration may be filed under Rule 60(b). Rule 60(b) provides for reconsideration where one 20 or more of the following is shown: (1) mistake, inadvertence, surprise or excusable neglect; 21 (2) newly discovered evidence which by due diligence could not have been discovered before the 22 court’s decision; (3) fraud by the adverse party; (4) the judgment is void; (5) the judgment has 23 been satisfied; (6) any other reason justifying relief. Fed. R. Civ. P. 60(b); School Dist. 1J v. 24 ACandS Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). 25 Plaintiff contends that he did not receive a copy of the Clerk’s October 21, 2020 notice 26 informing him that his action could not go forward until he paid the filing fee or filed a completed 27 IFP application by the November 30, 2020 deadline. Dkt. 5 at 1-3. As mentioned above, the 1 21, 2020 notice. Dkt. 3. The record now reveals that Plaintiff’s failure to respond to the Clerk’s 2 notice was because he never received such notice. See Dkt. 5 at 1-3. Rule 60(b)(1) provides for 3 reconsideration where mistake, inadvertence, surprise or excusable neglect is shown, see Fed. R. 4 Civ. P. 60(b)(1), and Plaintiff has shown such proof worthy of reconsideration based on these 5 circumstances, see Dkt. 5 at 1-3. Accordingly, Plaintiff’s motion for reconsideration is 6 GRANTED. Dkt. 5. 7 Furthermore, the Court notes that Plaintiff, a civil detainee, is not a “prisoner” subject to 8 the provisions of the Prisoner Litigation Reform Act. See Page v. Torrey, 201 F.3d 1136, 1140 9 (9th Cir. 2000) (to fall within the definition of “prisoner,” the individual in question must be 10 currently detained as a result of accusation, conviction, or sentence for a criminal offense). 11 Because Plaintiff is not a “prisoner,” the provisions of section 1915—that require prisoners who 12 seek to proceed IFP to submit a copy of transactions in their inmate account and provide that the 13 full filing fee be paid in installments—do not apply to him. However, non-prisoners are required 14 by section 1915(a)(1) to provide an affidavit with sufficient information to allow the Court to 15 make an accurate determination whether they are indigent and thus entitled to proceed IFP. 16 Therefore, Plaintiff shall file a non-prisoner application to proceed IFP, as directed below. If, 17 based upon the information provided by Plaintiff, he is granted leave to proceed IFP, the Court 18 will proceed to review his complaint under § 1915(e)(2).1 If the Court determines that Plaintiff is 19 not entitled to IFP status, he will be required to pay the full filing fee or the action will be 20 dismissed. 21 CONCLUSION 22 For the reasons outlined above, the Court rules as follows: 23 1. Plaintiff’s motion for reconsideration is GRANTED. Dkt. 5. The Clerk shall 24 REOPEN this action, VACATE the Court’s December 7, 2020 Order of Dismissal Without 25 Prejudice (Dkt. 3), and REINSTATE the complaint filed on October 13, 2020 (Dkt. 1). The Court 26 will review Plaintiff’s complaint in a separate written Order only after Plaintiff files his completed 27 1 non-prisoner IFP application form, as directed below. 2 2. Plaintiff shall file a non-prisoner application to proceed IFP. Plaintiff shall answer 3 all questions in both the attached complaint and non-prisoner IFP application forms as well as 4 || provide any requisite documentation. He shall file his completed non-prisoner IFP application 5 form within twenty-eight (28) days of the date of this Order. The failure to do so will result in 6 || the dismissal of this action without prejudice. 7 3. The Clerk is directed to send Plaintiff a blank non-prisoner IFP application form. 8 4. This Order terminates Docket No. 5. 9 IT IS SO ORDERED. 10 Dated: June 14, 2021 11 Zoe 4 lag 4 Se GE YVONNE GONZALEZ ROGERS %L United States District Judge

© 15 16

= 17

Z 18 19 20 21 22 23 24 25 26 27 28