Herrera-Garcia v. Sheryll

Filing 13

ORDER Adopting 12 Findings and Recommendations and DENYING Plaintiff's 9 Motion to Proceed IFP signed by District Judge Dale A. Drozd on 11/27/2017. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MANUEL HERRERA-GARCIA,

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Plaintiff,
v.

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DENYING
PLAINTIFF’S MOTION TO PROCEED IN
FORMA PAUPERIS

SHERYLL,
Defendant.

(Doc. Nos. 9, 12)

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No. 1:17-cv-00735-DAD-EPG

Manuel Herrera-Garcia is a state prisoner proceeding pro se with this civil rights action
brought pursuant to 42 U.S.C. § 1983.
On August 16, 2017, plaintiff filed a motion to proceed in forma pauperis. (Doc. No. 9.)

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On August 22, 2017, the assigned magistrate judge issued findings and recommendations,

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recommending that plaintiff’s application to proceed in forma pauperis be denied, and that he be

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required to pay the $400 filing fee within 30 days of the date the order adopting the findings and

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recommendations is entered. (Doc. No. 12.) Plaintiff was provided twenty-one days to file

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objections to those findings and recommendations. (Id.) To date, plaintiff has not done so, and

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the time for doing so has passed.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 304, this

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court has conducted a de novo review of this case. Having carefully reviewed the entire file, the

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court finds the findings and recommendations to be supported by the record and proper analysis,
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except that plaintiff’s application to proceed in forma pauperis will be denied without prejudice

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to being renewed.

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Based upon what is now before the court, the undersigned cannot conclude that plaintiff is

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unable to pay the $400 filing fee. In plaintiff’s application to proceed in forma pauperis filed

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with the court on August 16, 2017, he stated under penalty of perjury that he possesses cash in the

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amount of $50,000 and, in addition, indicated that he had received an average deposit into his

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prisoner’s trust account of $500.00 per month over the past six months with his average balance

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in that account being $500 as well. (Doc. No. 9 at 3, 5.) However, an “Inmate Statement Report”

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submitted by the California Department of Corrections and Rehabilitation to the court on August

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18, 2017, appears to state that as of that date plaintiff had a $0.00 balance in his prisoner’s trust

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account. (Doc. No. 11.) Because the evidence before the court as to plaintiff’s financial

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wherewithal is inconclusive, the court will adopt the pending findings and recommendations and

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deny plaintiff’s motion to proceed in forma pauperis. However, this denial will be without

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prejudice to plaintiff filing another application to proceed in forma pauperis clarifying his

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financial condition and adequately demonstrating financial hardship.

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For these reasons,

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1.

The findings and recommendations dated August 22, 2017 (Doc. No. 12) are

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adopted in full, except that the denial of plaintiff’s motion shall be without

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prejudice;

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2.

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Plaintiff’s motion to proceed in forma pauperis (Doc. No. 9) is denied without
prejudice;

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3.

Plaintiff shall pay the $400 filing fee in full within 30 days of the date of issuance

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of this order or submit a renewed application to proceed in forma pauperis

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clarifying his financial condition and adequately demonstrating financial hardship;

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and

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4.

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The Clerk of Court is directed to serve a copy of this order on the Financial
Department, U.S. District Court, Eastern District of California, Fresno Division.

IT IS SO ORDERED.
Dated:

November 27, 2017
UNITED STATES DISTRICT JUDGE

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