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Alton Dean v. H. Braziel

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


June 20, 2011

ALTON DEAN, PLAINTIFF,
v.
H. BRAZIEL, ET AL., DEFENDANTS.

ORDER

On April 13, 2011, the court found that plaintiff did not pay the required filing fee or submit an application for leave to proceed in forma pauperis. Accordingly, the court ordered plaintiff to submit either the filing fee or the application required by § 1915(a) within thirty days. The order warned plaintiff that failure to do so might result in this action being dismissed. The 30-day period expired and plaintiff did not pay the filing fee, submit an application to proceed in forma pauperis or otherwise respond to the court's order. Accordingly, on May 26, 2011, this action was dismissed without prejudice and judgment was entered.*fn1

On May 31, 2011, plaintiff filed an application to proceed in forma pauperis. He did not, however, request relief from judgment. Pursuant to Fed. R. Civ. P. 60(b):

On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief. Accordingly, the court will not address plaintiff's untimely request for leave to proceed in forma pauperis. Should plaintiff file a request for relief from judgment, and should the court grant such request, the court will then consider plaintiff's request for leave to proceed in forma pauperis.

The court notes that it will issue no response to future filings by plaintiff in this action not authorized by the Federal Rules of Civil Procedure or Federal Rules of Appellate Procedure.

So ordered.


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