IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
September 10, 2012
HAKEEM ABDULLAH HUSSEIN, PLAINTIFF,
M.D. MCDONALD, DEFENDANT.
The opinion of the court was delivered by: Garland E. Burrell, Jr. Senior United States District Judge
Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On August 1, 2012, the court revoked plaintiff's in forma pauperis status and directed plaintiff to pay the $350 filing fee within 21 days. See 28 U.S.C. § 1914(a). The court warned plaintiff that failure to timely pay the filing fee would result in dismissal of this action.
On August 14, 2012, plaintiff filed a Rule 60(b) motion for relief from judgment pursuant to the Federal Rules of Civil Procedure. Defendant filed an opposition and plaintiff filed a reply. Because the court's order denying plaintiff's in forma pauperis status is not a final, appealable, order, plaintiff's Rule 60(b) motion is improper. See United States v. Martin, 226 F.3d 1042, 1048 n. 8 (9th Cir. 2000) (Rule 60(b) applies only to motions attacking "final, appealable orders"). As long as a district court has jurisdiction, however, "it possesses the inherent procedural power to reconsider, rescind, or modify an interlocutory order for cause seen by it to be sufficient." City of Los Angeles v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001). Local Rule 230(j) requires that a motion for reconsideration state "what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion," and "why the facts or circumstances were not shown at the time of the prior motion." E.D. Cal., Local Rule 230(j)(3)-(4). Here, plaintiff's motion does not describe new or different facts or circumstances that would warrant reconsideration of the court's August 1, 2012 order.
For the reasons stated in the magistrate judge's June 8, 2012 Findings and Recommendations, plaintiff is not eligible to proceed in forma pauperis, and must therefore pay the filing fee to proceed with this action. The time for acting has passed and plaintiff has not paid the filing fee.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for relief from judgment (Dckt. No. 35) is denied.
2. This action is dismissed. See 28 U.S.C. § 1914(a).
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