Linthecome v. Alfaro, et al.

Filing 23

ORDER on Plaintiff's Request to submit and file In Forma Pauperis with Declaration re 20 , 22 signed by Magistrate Judge Sheila K. Oberto on 8/10/2017. (Filing Deadline: 8/28/2017). (Lundstrom, T)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 MARCUS L. LINTHECOME, 9 Plaintiff, 10 v. Case No. 1:17-cv-00872-SKO (PC) ORDER ON PLAINTIFF’S “REQUEST TO SUBMIT AND FILE IN FORMA PAUPERIS WITH DECLARATION” 11 ALFARO, et al., (Docs. 20, 22) 12 Defendants. FOURTEEN (14) DAY DEADLINE 13 14 15 16 17 Plaintiff, Marcus L. Linthecome, filed a this civil rights action pursuant to 42 U.S.C. ' 1983 in the United States District Court in the Northern District of California on April 12, 2017. On May 24, 2017, Plaintiff filed an application to proceed in forma pauperis under 28 U.S.C. § 1915 (Doc. 10), as well as his consent to magistrate judge jurisdiction (Doc. 11). On June 30, 18 2017, the case was transferred to this Court since the Complaint describes events that occurred at 19 North Kern State Prison (“NKSP”) in Kern County, where the named defendants are located. 20 (Doc. 14.) Since Plaintiff has three strikes under § 1915 and his allegations fail to show imminent 21 danger of serious physical injury at the time he filed the suit, his application to proceed in forma 22 pauperis was denied and the full filing fee of $400 is currently due on or before August 14, 2017. 23 (Doc. 17.) 24 25 26 27 On July 31, 2017, a petition for writ of habeas corpus and a “request to submit and file in forma pauperis with declaration” from Plaintiff were received and lodged along with a request to amend Plaintiff’s pleadings with a habeas corpus petition. (Docs. 20, 21, 22.) It appears from these filings that Plaintiff may wish to convert this from a civil rights action under 42 U.S.C. § 28 1 1 1983 to a habeas action under 28 U.S.C. § 2254. The filing fees for these actions differ 2 significantly which constitutes good cause to extend the due date for the payment of Plaintiff’s 3 filing fee. This extension will allow Plaintiff to determine the type of action under which he 4 wishes to proceed. 5 Accordingly, the Court HEREBY ORDERS that: 6 1. The Clerk’s Office is directed to file Plaintiff’s “request to submit and file in forma pauperis with declaration” which was lodged on July 31, 2017, (Doc. 22); 7 2. 8 Within fourteen (14) days of the date of service of this order, Plaintiff shall either: 9 10 a. pay in full the $400.00 filing fee for this action; or 11 b. file a statement indicating that he wishes this action to be re-designated as a petition for writ of habeas corpus under 28 U.S.C. § 2254; and 12 3. 13 Plaintiff’s failure to comply with this order shall result in the dismissal of this action without prejudice. 14 15 IT IS SO ORDERED. 16 17 18 Dated: August 10, 2017 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 2 .

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