Herd v. Cate

Filing 16

ORDER REGARDING Plaintiff's 15 Motion to Rescind Filing Fee; ORDER VACATING 11 Order Directing California Department of Corrections and Rehabilitation to Collect Filing Fee signed by Magistrate Judge Dennis L. Beck on 11/6/2014. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SCOTT HERD,

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Plaintiff,
v.
MATTHEW CATE,

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Defendant.

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Case No. 1:13-cv-01639 AWI DLB PC
ORDER REGARDING PLAINTIFF’S
MOTION TO RESCIND FILING FEE
(Document 15)
ORDER VACATING ORDER DIRECTING
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND REHABILITATION
TO COLLECT FILING FEE
(Document 11)

Plaintiff Scott Herd (“Plaintiff”) is a California state prisoner proceeding pro se and in forma
pauperis in this civil action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on September
26, 2013, and it was transferred to this Court on October 10, 2013.
On November 18, 2013, Plaintiff filed a motion in which he disagreed with the Court’s
decision to treat his September 26, 2013, letter as a complaint under section 1983. Plaintiff stated
that he had no intention of filing a section 1983 action, and that such an action would be prejudicial
because it may count as a strike against him. Plaintiff requested that the Court “return his legal
papers so that other/further criminal remedies can be pursued with federal prosecuting authorities.”
The Court construed this as a request for voluntary dismissal and dismissed the action on November
21, 2013.
On October 30, 2014, Plaintiff filed a motion to rescind the collection of the $350.00 filing
fee. He also requests that CDCR be provided with notice of the action.
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Under the circumstances, as Plaintiff did not intend to file a section 1983 action, the Court

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will VACATE the November 4, 2013, order requiring CDCR to collect payments for this action.

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The Clerk of the Court is DIRECTED to serve a copy of this order on the Director of the

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California Department of Corrections, via the Court’s electronic case filing system (CM/ECF).

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IT IS SO ORDERED.
Dated:

/s/ Dennis

November 6, 2014

L. Beck

UNITED STATES MAGISTRATE JUDGE

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