Plaintiff is a state prisoner proceeding pro se with an action under 42 U.S.C. § 1983, 42 U.S.C. §§ 3769a(b) and 3769b(a)(1), and California Penal Code § 1170.12. Plaintiff has consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c)(1).
By an order filed May 25, 2010, the court denied plaintiff's application to proceed in forma pauperis on the basis that the "three strikes" provision of the Prisoner Litigation Reform Act bars the court from granting him that status. (See May 25, 2010 Order (Doc. No. 5), at 2 & 4 (citing 28 U.S.C. § 1915(g)). At that time plaintiff was therefore ordered to pay the $350.00 filing fee within thirty days, or this action would be dismissed. The thirty-day period expired and plaintiff did not pay the filing fee or otherwise respond to the court's May 25, 2010 order. For that reason, on July 8, 2010, this action was dismissed without prejudice . (See July 8, 2010 Order (Doc. No. 6)).
Over twenty-one months later, on April 17, 2012, a motion for reconsideration of the July 8, 2010 order was docketed in this action. (See Doc. No. 12.) Plaintiff's motion for reconsideration is one of a number of pieces of mail that were delayed by mail room staff misconduct at California State Prison-Sacramento (CSP-Sacramento). Plaintiff's mail containing his motion for reconsideration was metered on July 14, 2010. Accordingly, the court will consider the motion for reconsideration to be timely filed.
In his motion for reconsideration, plaintiff contends that $350.00 filing fee was withdrawn from his prison trust account in June 2010 for mailing to this court. In three other documents filed in this action following its dismissal, plaintiff asserts that he had completed and sent a request to prison officials to withdraw the necessary funds from his account to pay the filing fee. (See Docket Nos. 8, 9 & 11.) The Clerk of the Court, through the Financial Department, has informed the court, however, that no check in the amount of the $350.00 filing fee was ever received from plaintiff. Accordingly, good cause appearing, plaintiff's motion for reconsideration will be denied without prejudice to its renewal accompanied by a certified copy of plaintiff's inmate trust account statement for the period from May 2010 through July 2010 which shows the relevant deduction to which he refers.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's April 17, 2012 motion for reconsideration (Doc. No. 12) is denied without prejudice to its renewal accompanied by a certified copy of plaintiff's inmate trust account statement for the period from May 2010 through July 2010 which shows the relevant filing fee deduction.
2. The Clerk of the Court is directed to serve a copy of this order on plaintiff at his address of record and at California State Prison-Lancaster (CSP-Lancaster).*fn1
3. The Clerk of the Court is directed to send a courtesy copy of this order to Monica N. Anderson, ...