MOTIONFOR RECONSIDERATION

May 17, 2023

EUN JUNG LIM

[ENTER ADDRESS]

Plaintiff in Pro Per

UNITED STATES DISTRICT COURTS FOR THE CENTRAL DISTRICT OF CALIFORNIA

EUN JUNG LIM,                               Plaintiff               And   IRVINE POLICE DEPARTMENT; MICHAEL HAMEL; MICHAEL MCNALL; RENE NUTTER; SEAN PAUL CRAWFORD; ERIC STEELE; MICHELE HINIG; JAMES MOORE; WILLIAM RUSSELL; JERRY POOLE; MISTY DANIELS; TODD SPITZER; DUSTIN RICE; TAYLOR KRONE; ALLISON TAYLOR TARGOFF; and GAGANJOT BATTH                             Defendants                   Case No.: _____________

    NOTICE OF MOTION AND MOTION FOR RECONSIDERATION; MEMORANDUM OF POINTS AND AUTHORITIES THEREOF; DECLARATION IN SUPPORT THEREOF.

NOTICE OF MOTION

NOTICE TO ALL THE DEFENDANTS AND THEIR ATTORNEYS OF RECORD; AND SPECIAL TO THIS HONORABLE COURT:

NOTICE IS HEREBY GIVEN that on [ENTER DATE] or as soon thereafter as the matter may be heard, in this Court, Plaintiff, EUN JUNG LIM (hereinafter “Plaintiff”) will, and hereby does, move for an Order to reconsider this Court’s decision made on January 31, 2022, which decision denied Plaintiff’s request to proceed in forma pauperis.            

This Motion is made on the grounds that Plaintiff cannot afford the costs of this suit because she is unemployed and is living on state benefits.

This Motion is based on this Notice, the attached Memorandum of Points and Authorities, the pleadings herein, the Declaration in support of the Motion, and on such further oral and/or documentary evidence as may be presented or judicially noticed at the hearing of this Motion.

TABLE OF CONTENTS

TABLE OF CONTENTS. 3

TABLE OF AUTHORITIES. 4

INTRODUCTION. 6

LEGAL ARGUMENTS. 6

I.      THE PLAINTIFF HAS MADE AN ADEQUATE SHOWING OF INDIGENCY. 6

II.         PLAINTIFF’S COMPLAINT IS MERITORIOUS. 7

III.        A DENIAL OF PLAINTIFF’S REQUEST WOULD AMOUNT TO AN ABUSE OF THIS COURT’S DISCRETION. 8

CONCLUSION. 9

DECLARATION IN SUPPORT OF MOTION TO PROCEED IN FORMA PAUPERIS. 10

ORDER. 12

CERTIFICATE OF SERVICE. 14

 

TABLE OF AUTHORITIES

CASES

.” United States v. Comprehensive Drug Testing, Inc., 473 F.3d 915, 955 (9th Cir.2006)………… 8

Adkins v. E. I. DuPont de Nemours & Co., 335 U.S. 331, 339………………………………………………. 6

Bell Atlantic Corp. v. Twombly, ___ U.S. ___, ___, 127 S. Ct. 1955, 1974 (2007)………………….. 7

City of Los Angeles v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir.2001)………………… 8

Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984)……………………………………………….. 7

Haines v. Kerner, 404 U.S. 519, 520 (1972)……………………………………………………………………….. 8

Hishon v. King Spalding, 467 U.S. 69, 73 (1984)………………………………………………………………… 7

Hosp. Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 740 (1976);……………………………………. 7

Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967)…………………………………………………………………….. 7

Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989)………………………………………………….. 7

Motorola V. J.B. Rodgers Mechanical Contractors, 215 F.R.D. at 585–86…………………………….. 8

Neitzke v. Williams, 490 U.S. 319, 325 (1989)……………………………………………………………………. 7

Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 809 (9th Cir.1963)……………………………… 8

STATUTES

18 U.S.C. § 1621…………………………………………………………………………………………………………… 10

OTHER AUTHORITIES

Webster’s New International Dictionary 1919 (2d ed. 1942)…………………………………………………. 6


 

EUN JUNG LIM

[ENTER ADDRESS]

Plaintiff in Pro Per

UNITED STATES DISTRICT COURTS FOR THE CENTRAL DISTRICT OF CALIFORNIA

EUN JUNG LIM,                               Plaintiff               And   IRVINE POLICE DEPARTMENT; MICHAEL HAMEL; MICHAEL MCNALL; RENE NUTTER; SEAN PAUL CRAWFORD; ERIC STEELE; MICHELE HINIG; JAMES MOORE; WILLIAM RUSSELL; JERRY POOLE; MISTY DANIELS; TODD SPITZER; DUSTIN RICE; TAYLOR KRONE; ALLISON TAYLOR TARGOFF; and GAGANJOT BATTH                             Defendants                   Case No.: _____________

    NOTICE OF MOTION AND MOTION FOR RECONSIDERATION; MEMORANDUM OF POINTS AND AUTHORITIES THEREOF; DECLARATION IN SUPPORT THEREOF.

MOTION FOR RECONSIDERATION

COMES NOW Plaintiff EUN JUNG LIM, seeking a reconsideration of this Court’s Order made on January 31, 2022, which Order denied Plaintiff’s request to proceed in forma pauperis.  In support of this Motion, Plaintiff states as follows:

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR RECONSIDERATION

 

INTRODUCTION

Plaintiff filed a request that he proceeds in forma pauperis in his case against the Defendants before this Honorable Court. In the request, the Plaintiff stated that he is unable to pay the Court’s fees and costs. Notably, Plaintiff is unemployed, and has been unemployed. Besides, he has been living on State benefits (Calfresh) since February 1, 2022. Plaintiff therefore requests this Court reconsiders its Order that denied Plaintiff’s request to proceed in forma pauperis.

LEGAL ARGUMENTS

                   I.THE PLAINTIFF HAS MADE AN ADEQUATE SHOWING OF INDIGENCY.

Poverty, in its primary sense, is a human condition, to be “[w]anting in material riches or goods; lacking in the comforts of life; needy,” Webster’s New International Dictionary 1919 (2d ed. 1942). An affidavit “is sufficient which states that one cannot because of his poverty `pay [Court’s fees and costs] . . . and still be able to provide’ himself and dependents `with the necessities of life.'” Adkins v. E. I. DuPont de Nemours & Co., 335 U.S. 331, 339.

In the instant case, Plaintiff avers that he is unable to meet this Honorable Court’s fees and costs. Attached to this Motion, Plaintiff has declared under oath that she is unemployed and is living on Calfresh, thus receiving food stamps. In that regard, a denial of Plaintiff’s request to proceed in forma pauperis would occasion undue harm on Plaintiff since he would not be in a position to seek legal redress and defend his rights that are guaranteed by the US Constitution.

                II.PLAINTIFF’S COMPLAINT IS MERITORIOUS. 

A complaint is legally frivolous when it lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Accordingly, the Courts dismiss complaints as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e).

To state a claim on which relief may be granted, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, ___ U.S. ___, ___, 127 S. Ct. 1955, 1974 (2007). In considering whether a complaint states a cognizable claim, the court accepts as true the material allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). Further, Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972).

In the instant action, Plaintiff avers that he has a meritorious action against the Defendants. It is worth noting that Plaintiff duly noted this Court’s concerns over the deficiencies of Plaintiff’s originally filed Complaint. Accordingly, Plaintiff intends to file an Amended Complaint. Plaintiff understands that his amended complaint will supersede his original complaint, see Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967), and his original complaint will no longer serve any function in this case. In the Amended Complaint, Plaintiff claims that his constitutionally guaranteed rights were violated when he was subjected to prosecution based on false allegations. He includes some/most of the Defendants under the doctrine of respondeat superior. In that regard, Plaintiff avers that his claims are neither frivolous nor meritless. Instead, he seeks to get legal redress for the actions and/or inactions of the Defendants, which subjected him to prosecution based on false allegations.

             III.A DENIAL OF PLAINTIFF’S REQUEST WOULD AMOUNT TO AN ABUSE OF THIS COURT’S DISCRETION.

Motions for reconsideration are “creatures of local rule or practice.” United States v. Comprehensive Drug Testing, Inc., 473 F.3d 915, 955 (9th Cir.2006). Among the various district court local rules, common grounds that support a motion for reconsideration are the emergence of new facts, a change in the law, manifest error by the court in the first order (at least in two districts), and failure to consider material facts. Motorola V. J.B. Rodgers Mechanical Contractors, 215 F.R.D. at 585–86.

As a general matter, “ ‘[a]s long as a district court has jurisdiction over the case, then 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) (quoting Melancon v. Texaco, 659 F.2d 551, 553 (5th Cir.1981) (“[W]e have long recognized ‘the well-established rule that a district judge always has power to modify or to overturn an interlocutory order or decision while it remains interlocutory.’ ” (quoting Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 809 (9th Cir.1963))).

In the instant action, Plaintiff avers that this Honorable Court failed to appreciate the fact that Plaintiff is indigent and is completely unable to prosecute this case if he is required to pay court’s fees and costs. Plaintiff avers that there is sufficient cause for this Court to grant Plaintiff’s request to proceed in fomra pauperis. Notably, this Court possesses the inherent procedural power to reconsider, rescind, or modify an interlocutory order for cause seen by it to be sufficient.  Plaintiff therefore requests this Court reconsiders its decision that denied Plaintiff’s request to proceed in forma pauperis.

 

CONCLUSION

In light of the foregoing, Plaintiff prays this Motion be granted and that this court reconsiders Plaintiff’s request to proceed in forma pauperis. Accordingly, Plaintiff prays this Honorable Court to reverse this Court’s Order issued on January 31, 2022. Lastly, Plaintiff also requests such other and further relief as is just.

Respectfully submitted:



Dated: __________

 

 

 

 

 

 

 

 

 

 

 

 

EUN JUNG LIM

[ENTER ADDRESS]

Plaintiff in Pro Per

UNITED STATES DISTRICT COURTS FOR THE CENTRAL DISTRICT OF CALIFORNIA

EUN JUNG LIM,                               Plaintiff               And   IRVINE POLICE DEPARTMENT; MICHAEL HAMEL; MICHAEL MCNALL; RENE NUTTER; SEAN PAUL CRAWFORD; ERIC STEELE; MICHELE HINIG; JAMES MOORE; WILLIAM RUSSELL; JERRY POOLE; MISTY DANIELS; TODD SPITZER; DUSTIN RICE; TAYLOR KRONE; ALLISON TAYLOR TARGOFF; and GAGANJOT BATTH                             Defendants                   Case No.: _____________

    NOTICE OF MOTION AND MOTION FOR RECONSIDERATION; MEMORANDUM OF POINTS AND AUTHORITIES THEREOF; DECLARATION IN SUPPORT THEREOF.

 

DECLARATION IN SUPPORT OF MOTION TO PROCEED IN FORMA PAUPERIS

COMES NOW Plaintiff under oath, and swears or affirms under penalty of perjury that, because of his poverty, he cannot prepay the Court’s fees and costs. Plaintiff believes that he is entitled to redress. Plaintiff swears or affirms under penalty of perjury under United States laws that his averments on this declaration are true and correct. (18 U.S.C. § 1621). In support of this Declaration, Plaintiff shows the following:

  1. My constitutionally guaranteed rights were violated when I was subjected to prosecution based on false allegations. I have included some/most of the Defendants in my Complaint under the doctrine of respondeat superior.

WHEREFORE, I am unable to pay for the fees and costs of this case, and I request that this Honorable Court allow me to proceed in forma pauperis.

Respectfully submitted:

[ENTER DATE]

SWORN AND SUBSCRIBED

Before me, this ___________ day of ___________, 2022.

Notary Public

 

EUN JUNG LIM

[ENTER ADDRESS]

Plaintiff in Pro Per

UNITED STATES DISTRICT COURTS FOR THE CENTRAL DISTRICT OF CALIFORNIA

EUN JUNG LIM,                               Plaintiff               And   IRVINE POLICE DEPARTMENT; MICHAEL HAMEL; MICHAEL MCNALL; RENE NUTTER; SEAN PAUL CRAWFORD; ERIC STEELE; MICHELE HINIG; JAMES MOORE; WILLIAM RUSSELL; JERRY POOLE; MISTY DANIELS; TODD SPITZER; DUSTIN RICE; TAYLOR KRONE; ALLISON TAYLOR TARGOFF; and GAGANJOT BATTH                             Defendants                   Case No.: _____________

    NOTICE OF MOTION AND MOTION FOR RECONSIDERATION; MEMORANDUM OF POINTS AND AUTHORITIES THEREOF; DECLARATION IN SUPPORT THEREOF.

 

ORDER

Having read and considered Plaintiff’s Motion for Reconsideration and Declaration in support of Plaintiff’s request to proceed in Forma Pauperis, the Court grants Plaintiff’s request herein and

IT IS HEREBY ORDERED this Court’s Order issued on January 31, 2022 is hereby reversed, and Plaintiff be allowed to proceed in forma pauperis in the above-referenced case.

SO ORDERED, this the _________  day _____of, 2022.

____________________________

JUDGE, US DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CERTIFICATE OF SERVICE

            I hereby certify that on [ENTER DATE], copies of the foregoing document have been sent to the Defendants in the following address:

            [ENTER DEFENDANTS’ ADDRESSES]

DATED:                                                                         

 

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