Martinez-Vivanco v. Warden
- Eric Tostrud
- 0:23-cv-01853
- U.S. District Court · District of Minnesota
- 3
Martinez-Vivanco v. Warden: Judge Wright denied reconsideration but granted permission to appeal without prepaying fees.
Lucila Martinez-Vivanco’s request for reconsideration and application to appeal without prepaying the filing fee were affected; she remains responsible for the stated appeal fees.
What happened
In Martinez-Vivanco v. Warden, Lucila Martinez-Vivanco asked the court to act immediately on her appeal. The court treated her filing as a request to reconsider its earlier decision dismissing her case as duplicative.
The court denied reconsideration because Martinez-Vivanco did not object to the magistrate judge’s recommendation and did not show compelling circumstances, a serious reason required for reconsideration. The court also granted her permission to appeal without prepaying the filing fee because she qualified financially and her appeal was not frivolous.
Judge Wilhelmina M. Wright ordered Martinez-Vivanco to pay an initial partial appeal fee of $90.86 immediately and the remaining $414.14 through payments required by law.
The detailed version
- Martinez-Vivanco v. Warden · No. 0:23-cv-01853
- Eric Tostrud
- Dec. 12, 2023
Background
Petitioner Lucila Martinez-Vivanco filed a motion titled “Motion to Expediate and Rule on Appeal Immediately.” Because she was representing herself, the court interpreted the filing as a motion asking the court to reconsider its earlier decision. She also applied to proceed on appeal without prepaying the filing fee.
Earlier, United States Magistrate Judge Douglas L. Micko had issued a Report and Recommendation recommending dismissal of the matter as duplicative. Martinez-Vivanco had an opportunity to object but did not do so. After reviewing the recommendation for clear error, the court adopted it on September 26, 2023.
Court’s Analysis
The court explained that a party must first obtain permission to file a motion for reconsideration by showing “compelling circumstances.” Reconsideration is limited to correcting a clear legal or factual error or considering newly discovered evidence. Martinez-Vivanco argued that the court had made a clear legal error by not considering her petition, but she did not argue that the magistrate judge’s recommendation was incorrect and did not explain why she had failed to object. The court therefore concluded that compelling circumstances did not exist.
For the appeal-fee application, the court found that Martinez-Vivanco qualified financially for permission to proceed without prepaying the fee. It also found that she had no assets or means to pay the initial partial fee and that her appeal was not frivolous, meaning it had an arguable basis in law or fact. The court stated that it continued to believe the action had been correctly dismissed.
Ruling
Judge Wilhelmina M. Wright ordered that Martinez-Vivanco’s motion to expedite and obtain an immediate ruling on the appeal was DENIED. Her application to proceed without prepaying the appeal fee was GRANTED. The court ordered an initial partial filing fee of $90.86 due immediately, required payment of the remaining $414.14 through the statutory payment process, and directed the Clerk of Court to notify officials at the institution where Martinez-Vivanco is confined.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.