Plaintiff is a county jail inmate proceeding pro se with an action under 42 U.S.C. § 1983. On July 22, 2009, an order of this court directed at plaintiff was returned as "Undeliverable." On November 19, 2009, the court dismissed this action without prejudice for plaintiff's failure to update his address with the court. See Order and Judgment (Docket Nos. 7 and 8). The order and judgment of dismissal were served on plaintiff by mail to the same address that had been previously returned "Undeliverable." However, the order and judgment were not returned.
Plaintiff has since filed a motion for reconsideration challenging the dismissal of his case. He states that he is still housed at the Sacramento County Jail and has never had any occasion to notify the court of a change of address. See Mot. (Docket No. 9). He also provides the same address as appeared originally on the docket. Id.
Although there is no apparent reason for the previous return of one of the court's orders as "Undeliverable," plaintiff's receipt of the order and judgment dismissing his case shows that no notice of a change of address was necessary. Therefore the motion for reconsideration is well taken. The order and judgment of dismissal will be vacated. See Fed.R.Civ.P. 60(b)(1) (allowing a court to relieve a party from final judgment).
The order that was returned "Undeliverable" concerned plaintiff's motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. As stated in that order, the certificate portion of the request which must be completed by plaintiff's institution of incarceration has not been filled out. Plaintiff will be provided the opportunity to submit a completed in forma pauperis application in support of his application.
Accordingly, IT IS HEREBY ORDERED that:
1. The motion for reconsideration (Docket No. 9) is granted;
2. The order and judgment (Docket Nos. 7 and 8) are vacated;
3. The Clerk of the Court is instructed to re-open this case;
4. The Clerk of the Court is instructed to re-serve the order filed July 15, 2009 (docket no. 4) on plaintiff;
5. The Clerk of the Court is directed to send plaintiff a new Application to Proceed In Forma Pauperis By a Prisoner; and
6. Plaintiff shall submit, within thirty days from the date of this order, a completed affidavit in support of his request to proceed in forma pauperis on the form provided by the Clerk of Court. Plaintiff's failure to comply with this order will result in a recommendation that this action be dismissed without prejudice.
© 1992-2010 VersusLaw ...