Opinion
No. C 11-4523 WHA (PR)
01-24-2012
ORDER DENYING RELIEF FROM JUDGMENT
(Docket No. 7)
Plaintiff, a prisoner of the State of California, filed this civil rights action under 42 U.S.C. 1983. The case was dismissed without prejudice because plaintiff did not meet the deadline for completing his IFP application or paying the filing fee. Plaintiff has filed an "objection" to the dismissal, which is construed as a motion for relief from judgment under Rule 59 of the Federal Rules of Civil Procedure. For the reasons discussed below, the motion (Docket No. 7) is DENIED.
On September 19,2011, the day the complaint was filed, the clerk notified plaintiff that he had neither paid the filing fee nor filed an application to proceed in forma pauperis ("IFP"). Along with the notice, the clerk mailed to plaintiff the court's IFP forms, instructions for completing the forms, and a stamped return envelope. In the notice, plaintiff was informed that the case would be dismissed if he did not file pay the fee or file a completed IFP application within thirty days. On September 23, 2011, plaintiff filed an IFP application, but it was not complete in that it did not include a certificate of funds completed and signed by a prison official or a trust account statement showing transactions and balances for the last six months. In an order dated October 28, 2011, he was informed what was missing from his application and he was granted an extension of time, to and including November 28, 2011, in which to submit the missing certificate of funds and prison trust account statement. He was cautioned that his failure to do so would result in the dismissal of this case. On December 23, 2011, as no response had been received from plaintiff to the order of October 28, 2011, the case was dismissed.
Plaintiff claims in his present motion that he mailed two completed IFP applications to the court on November 23, 2011, by giving them prison officials. No such applications were received. Plaintiff attaches no evidence to corroborate his claim, nor does he identify the officials to whom he gave the materials. It is noted that the other documents that plaintiff mailed to the court have been received. Plaintiffs uncorroborated, self-serving statement following dismissal does not, without more, establish that he timely complied with the order dated October 28, 2011. Accordingly, his motion for relief from judgment is DENIED.
It is noted that because this case was without prejudice, plaintiff may file his claims in a new case. Of course, if he does so, in his new case he must either pay the filing fee or submit a complete IFP application.
IT IS SO ORDERED.
_________________
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
ANTONIO CORTEZ BUCKLEY, Plaintiff,
v.
ARNOLD SCHWARZENEGGER et al, Defendant.
Case Number: CV11-04523 WHA
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California.
That on January 24,2012,1 SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.
Antonio Cortez Buckley
E-71421
Salinas Valley State Prison
PO Box 1050
Soledad, CA 93960
Richard W. Wieking, Clerk
By: Tracy Lucero, Deputy Clerk