Herrera-Garcia v. Sheryll
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)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
Case No. 1:17-cv-00735-DAD-EPG (PC)
ORDER VACATING FINDINGS AND
RECOMMENDATIONS ENTERED ON
AUGUST 3, 2017
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
(ECF NO. 9)
TWENTY-ONE DAY DEADLINE
Manuel Herrera-Garcia (“Plaintiff") is a state prisoner proceeding pro se with this civil
rights action filed pursuant to 42 U.S.C. § 1983.
On May 31, 2017, the Court issued an order giving Plaintiff forty-five days to either pay
the $400 filing fee or submit an application to proceed in forma pauperis. (ECF No. 7).
Plaintiff was warned that his case would be dismissed if he did not pay the filing fee or submit
an application to proceed in forma pauperis. (Id.). The time period expired, and Plaintiff did
not pay the filing fee, submit an application to proceed in forma pauperis, or otherwise respond
to the Court’s order.
recommendations, recommending that this action be dismissed, without prejudice, for
Plaintiff’s failure to pay the filing fee or file an application to proceed in forma pauperis. (ECF
Accordingly, on August 3, 2017, the Court issued findings and
On August 16, 2017, Plaintiff filed an application to proceed in forma pauperis. (ECF
No. 9). Accordingly, the Court will vacate its findings and recommendations entered on
August 3, 2017.
However, after reviewing Plaintiff’s application, it appears that Plaintiff can afford the
costs of this action. While the Court has not yet received a certified copy of Plaintiff’s prison
trust account statement, according to Plaintiff’s application, during the last six months Plaintiff
received an average deposit of $500. Additionally, Plaintiff has stated that he has $50,000 in
cash. Accordingly, the Court will recommend that Plaintiff’s application to proceed in forma
pauperis be denied, and that Plaintiff be required to pay the full filing fee of $400.00.
Accordingly, based on the foregoing, IT IS HEREBY RECOMMENDED that:
Plaintiff's application to proceed in forma pauperis be DENIED; and
If these findings and recommendations are adopted, that Plaintiff be required to
pay the $400 filing fee in full within 30 days of the date the order adopting these findings and
recommendations is entered.
These findings and recommendations are submitted to the United States District Judge
assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty-
one (21) days after being served with these findings and recommendations, Plaintiff may file
written objections with the court.
Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file
objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.
Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394
(9th Cir. 1991)).
Such a document should be captioned "Objections to
recommendations, entered on August 3, 2017, are VACATED.
IT IS SO ORDERED.
August 21, 2017
UNITED STATES MAGISTRATE JUDGE
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