Merrick v. Linderman ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 JD Merrick, No. CV-17-00014-TUC-DCB 10 Plaintiff, ORDER 11 v. 12 Michael Linderman, et al., 13 Defendants. 14 15 On April 9, 2020, this Court granted summary judgment for Defendants and entered 16 Judgment for Defendants. On May 11, 2020, the Plaintiff filed a Motion for Leave to File 17 in Excess of the Page Limit (Doc. 262) a combined Motion for Reconsideration and for a 18 Certificate of Appealability (Doc. 263 (lodged)).. 19 The Court grants the Plaintiff leave to file in excess of the page limit, denies 20 reconsideration, and finds any appeal, here, would be taken in good faith. The request for 21 a Certificate of Appealability is denied as moot. 22 The Motion for Reconsideration is not timely because it is filed later than 14 days 23 after the date of the Order. LRCiv 7.2(g)(2). Motions to reconsider are appropriate only in 24 rare circumstances, such as where the Court is: “(1) presented with newly discovered 25 evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if 26 there is an intervening change in controlling law.” School Dist. No. 1J, Multnomah County, 27 Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993). A motion for reconsideration should 28 not be used to ask a court “to rethink what the court had already thought through, rightly 1 or wrongly.” Above the Belt, Inc. v. Mel Bohannon Roofing, Inc., 99 F.R.D. 99, 101 2 (E.D.Va.1983). For example, a motion to reconsider would be appropriate where the Court 3 has patently misunderstood a party, has made a decision outside the adversarial issues 4 presented to the court by the parties, or has made an error not of reasoning but of 5 apprehension. A further basis for a motion to reconsider would be a controlling or 6 significant change in the law or facts since the submission of the issue to the court. Such 7 problems rarely arise and a motion to reconsider should be equally rare. Id., see also, 8 Sullivan v. Faras-RLS Group, Ltd., 795 F. Supp. 305, 308-09 (D. Ariz. 1992). 9 The facts and circumstances of the case and law remain the same now as they were 10 when the Court considered the Motion for Summary Judgment and entered Judgment for 11 the Defendants after full briefing by both parties on the issues of the case. Plaintiff’s Motion 12 for Reconsideration simply argues that the Court erred, i.e., got it wrong. This is an 13 argument he may raise on appeal. This is not a rare case for reconsideration. 14 Plaintiff did not proceed here in forma pauperis. He withdrew the Application to 15 Proceed Informa Pauperis and paid the filing fee on April 17, 2017. (Doc. 11.) For the 16 Plaintiff to proceed in forma pauperis on appeal, he must file a motion in the District Court 17 which complies with Rule 24(a)(1) of the Rules of Appellate Procedure and attach an 18 affidavit of poverty. 19 Accordingly, 20 IT IS ORDERED that the Motion to Exceed the Page Limit (Doc. 262) is 21 GRANTED. 22 IT IS FURTHER ORDERED that the Motion for Reconsideration (Doc. 263 23 (lodged)) is DENIED. 24 IT IS FURTHER ORDERED that the Motion for a Certificate of Appealability 25 (Dc. 263 (lodged)) is DENIED AS MOOT. 26 IT IS FURTHER ORDERED that the Clerk of the Court shall send the affidavit 27 form, Application to Proceed In Forma Pauperis, to the Plaintiff to use in the event he 28 wishes to file a Motion to Proceed In Forma Pauperis under Fed. R. App. P. 24(a)(1). 1 IT IS FURTHER ORDERED that the docket shall reflect that the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), 3 || that any appeal of this decision would be taken in good faith. 4 Dated this 14th day of May, 2020. 5 6 Y= ° Honorabje David C. But 7 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _3- Instructions for Prisoners Applying for Leave to Proceed In Forma Pauperis Pursuant to 28 U.S.C. § 1915 in a Civil Action (Non-habeas) in Federal Court You must pay the $350.00 filing fee plus the $50.00 administrative fees for a civil action. If you later file an appeal, you will be obligated to pay the $505.00 filing fee for the appeal. If you have enough money to pay the full $400.00 filing and administrative fees, you should send a cashier=s check or money order payable to the Clerk of the Court with your complaint. If you do not have enough money to pay the full $400.00 filing and administrative fees, you can file the action without prepaying the fees. However, the Court will assess an initial partial filing fee. The initial partial filing fee will be the greater of 20% of the average monthly deposits or 20% of the average monthly balance in your prison or jail account for the six months immediately preceding the filing of the lawsuit. The Court will order the agency that has custody of you to withdraw the initial partial filing fee from your prison or jail account as soon as funds are available and to forward the money to the Court. After the initial partial filing fee has been paid, you will owe the balance of the $350.00 filing fee (you will not be required to pay the $50.00 administrative fee). Until the filing fee is paid in full, each month you will owe 20% of your preceding month’s income. The agency that holds you in custody will collect that money and forward it to the Court any time the amount in your account exceeds $10.00. These installment fees are calculated on a per-case basis. This means that you will be required to pay 20% of your preceding month=s income for each civil non-habeas corpus case in which you have an outstanding filing fee balance. For example, if you are making payments toward filing fee balances in two civil non-habeas corpus cases, 40% of your preceding month=s income will be collected each month. The balance of the filing fee may be collected even if the action is later dismissed, summary judgment is granted against you, or you fail to prevail at trial. To file an action without prepaying the filing fee, and to proceed with an action in forma pauperis, you must complete the attached form and return it to the Court with your complaint. You must have a prison or jail official complete the certificate on the bottom of the form and attach a certified copy of your prison or jail account statement for the last six months. If you were incarcerated in a different institution during any part of the past six months, you must attach a certificate and a certified copy of your account statement from each institution at which you were confined. If you submit an incomplete form or do not submit a prison or jail account statement with the form, your request to proceed in forma pauperis will be denied. Even if some or all of the filing fee has been paid, the Court is required to dismiss your action if: (1) your allegation of poverty is untrue; (2) the action is frivolous or malicious; (3) your complaint does not state a claim upon which relief can be granted; or (4) your complaint makes a claim against a defendant for money damages and that defendant is immune from liability for money damages. If you file more than three actions or appeals which are dismissed as frivolous or malicious or for failure to state a claim on which relief can be granted, you will be prohibited from filing any other action in forma pauperis unless you are in imminent danger of serious physical injury. ___________________________________________ Name and Prisoner/Booking Number ___________________________________________ Place of Confinement ___________________________________________ Mailing Address ___________________________________________ City, State, Zip Code IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA _____________________________________ , CASE NO. __________________________________ Plaintiff, APPLICATION TO PROCEED v. IN FORMA PAUPERIS BY A PRISONER _____________________________________ , CIVIL (NON-HABEAS) Defendant(s). I, , declare, in support of my request to proceed in the above entitled case without prepayment of fees under 28 U.S.C. § 1915, that I am unable to pay the fees for these proceedings or to give security therefor and that I believe I am entitled to relief. In support of this application, I answer the following questions under penalty of perjury: 1. Have you ever before brought an action or appeal in a federal court while you were incarcerated or detained? GYes GNo If “Yes,” how many have you filed? . Were any of the actions or appeals dismissed because they were frivolous, malicious, or failed to state a claim upon which relief may be granted? GYes GNo If “Yes,” how many of them? . 2. Are you currently employed at the institution where you are confined? GYes GNo If “Yes,” state the amount of your pay and where you work. 3. Do you receive any other payments from the institution where you are confined? GYes GNo If “Yes,” state the source and amount of the payments. 4. Do you have any other sources of income, savings, or assets either inside or outside of the institution where you are confined? GYes GNo If “Yes,” state the sources and amounts of the income, savings, or assets. I declare under penalty of perjury that the above information is true and correct. ________________________________ ____________________________________________ DATE SIGNATURE OF APPLICANT ACKNOWLEDGEMENT OF COLLECTION OF FILING FEES FROM TRUST ACCOUNT I, , acknowledge that upon granting this Application, the Court will order designated correctional officials at this institution, or any other correctional institution to which I am transferred, to withdraw money from my trust account for payment of the filing fee, as required by 28 U.S.C. § 1915(b). The Court will require correctional officials to withdraw an initial partial payment equal to 20% of the greater of: (A) the average monthly deposits to my account for the six-month period preceding my filing of this action, or (B) the average monthly balance in my account for the six-month period preceding my filing of this action. After the initial payment, if the amount in my account is at least $10.00, the Court will require correctional officials to withdraw from my account 20% of each month’s income and forward it to the Court until the required filing fee is paid in full. I understand that I am required to pay the entire fee, even if my case is dismissed by the Court before the fee is fully paid. I further understand that if I file more than one action, correctional officials will be ordered to withdraw 20% of each month’s income, for each action, simultaneously. Accordingly, if I have filed two actions, correctional officials will withdraw 40% of my income each month; three actions will require 60% of my income each month, etc. ________________________________ ____________________________________________ DATE SIGNATURE OF APPLICANT CERTIFICATE OF CORRECTIONAL OFFICIAL AS TO STATUS OF APPLICANT=S TRUST ACCOUNT I, , certify that as of the date applicant signed this application: (Printed name of official) The applicant=s trust account balance at this institution is: $ The applicant=s average monthly deposits during the prior six months is: $ The applicant=s average monthly balance during the prior six months is: $ The attached certified account statement accurately reflects the status of the applicant=s account.