Herrera-Garcia v. Sheryll

Filing 12

ORDER VACATING 8 Findings and Recommendations Entered on August 3, 2017; FINDINGS and RECOMMENDATIONS Recommending That Plaintiff's 9 Application to Proceed In Forma Pauperis be Denied and That Plaintiff be Required to Pay the Filing Fee in Full, signed by Magistrate Judge Erica P. Grosjean on 8/21/17. Objections to F&R Due Within Twenty One Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:17-cv-00735-DAD-EPG (PC)

MANUEL HERRERA-GARCIA,
Plaintiff,

ORDER VACATING FINDINGS AND
RECOMMENDATIONS ENTERED ON
AUGUST 3, 2017

v.
SHERYLL,

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FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT PLAINTIFF’S
APPLICATION TO PROCEED IN FORMA
PAUPERIS BE DENIED AND THAT
PLAINTIFF BE REQUIRED TO PAY THE
FILING FEE IN FULL

Defendant.

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(ECF NO. 9)

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TWENTY-ONE DAY DEADLINE

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Manuel Herrera-Garcia (“Plaintiff") is a state prisoner proceeding pro se with this civil

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rights action filed pursuant to 42 U.S.C. § 1983.

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On May 31, 2017, the Court issued an order giving Plaintiff forty-five days to either pay

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the $400 filing fee or submit an application to proceed in forma pauperis. (ECF No. 7).

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Plaintiff was warned that his case would be dismissed if he did not pay the filing fee or submit

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an application to proceed in forma pauperis. (Id.). The time period expired, and Plaintiff did

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not pay the filing fee, submit an application to proceed in forma pauperis, or otherwise respond

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to the Court’s order.

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recommendations, recommending that this action be dismissed, without prejudice, for

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Plaintiff’s failure to pay the filing fee or file an application to proceed in forma pauperis. (ECF

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No. 8).

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Accordingly, on August 3, 2017, the Court issued findings and

On August 16, 2017, Plaintiff filed an application to proceed in forma pauperis. (ECF
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No. 9). Accordingly, the Court will vacate its findings and recommendations entered on

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August 3, 2017.

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However, after reviewing Plaintiff’s application, it appears that Plaintiff can afford the

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costs of this action. While the Court has not yet received a certified copy of Plaintiff’s prison

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trust account statement, according to Plaintiff’s application, during the last six months Plaintiff

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received an average deposit of $500. Additionally, Plaintiff has stated that he has $50,000 in

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cash. Accordingly, the Court will recommend that Plaintiff’s application to proceed in forma

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pauperis be denied, and that Plaintiff be required to pay the full filing fee of $400.00.

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Accordingly, based on the foregoing, IT IS HEREBY RECOMMENDED that:

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1.

Plaintiff's application to proceed in forma pauperis be DENIED; and

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2.

If these findings and recommendations are adopted, that Plaintiff be required to

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pay the $400 filing fee in full within 30 days of the date the order adopting these findings and

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recommendations is entered.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty-

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one (21) days after being served with these findings and recommendations, Plaintiff may file

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written objections with the court.

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Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.

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Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394

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(9th Cir. 1991)).

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Additionally,

IT

IS

Such a document should be captioned "Objections to

HEREBY

ORDERED

that

the

Court’s

findings

and

recommendations, entered on August 3, 2017, are VACATED.

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IT IS SO ORDERED.
Dated:

August 21, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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