Burnett v. Kammack et al

Filing 15

ORDER Vacating 12 FINDINGS AND RECOMMENDATIONS; ORDER Granting 14 Motion to Proceed IFP signed by Magistrate Judge Barbara A. McAuliffe on 12/08/2017. (Attachments: # 1 IFP Application) (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CARLOS ROMERO BURNETT,

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Plaintiff,

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v.
KAMMACK, et al.,

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Defendants.

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Case No.: 1:17-cv-01135-DAD-BAM (PC)
ORDER VACATING FINDINGS AND
RECOMMENDATIONS
(ECF No. 12)
ORDER GRANTING MOTION TO PROCEED IN
FORMA PAUPERIS
(ECF No. 14)

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Plaintiff Carlos Romero Burnett (“Plaintiff”) is a state prisoner proceeding pro se in this civil

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rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on August 23, 2017, together

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with a motion requesting leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF Nos.

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1, 2.)
On August 29, 2017, the Court issued an order denying without prejudice Plaintiff’s

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application to proceed in forma pauperis because it was incomplete. (ECF No. 3.) Plaintiff submitted

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a renewed motion on September 21, 2017, but this application was also incomplete, and the Court

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directed Plaintiff to submit a new application or pay the filing fee within forty-five (45) days. (ECF

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Nos. 5, 6.) Following two notices of change of address, the Court directed the Clerk of the Court to

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re-serve the Court’s September 22, 2017 order on Plaintiff at his updated address of record. (ECF No.

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11.)
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On November 27, 2017, after Plaintiff failed to file an application to proceed in forma pauperis

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within the deadline, the Court issued findings and recommendations recommending dismissal of this

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action, without prejudice, for Plaintiff’s failure to obey the Court’s order and failure to prosecute this

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action. (ECF No. 12.)

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On December 7, 2017, Plaintiff filed objections to the findings and recommendations. (ECF

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No. 13.) In his objections, Plaintiff states that the CDCR Trust Office maintains a procedure for

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fulfilling requests to provide certified copies of trust account statements. Plaintiff appears to argue

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that he completed the appropriate procedures, and the Trust Office was responsible for forwarding the

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appropriate documents to the Court. (Id.)

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Along with his objections, Plaintiff has filed the instant motion to proceed in forma pauperis.

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(ECF No. 14.) Pursuant to the filing of Plaintiff’s completed application to proceed in forma pauperis,

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the Court finds it proper to vacate its findings and recommendations of November 27, 2017.

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Plaintiff has made the showing required by § 1915(a) and accordingly, the request to proceed

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in forma pauperis will be granted. Plaintiff is obligated to pay the statutory filing fee of $350.00 for

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this action. 28 U.S.C. § 1915(b)(1). Plaintiff is obligated to make monthly payments in the amount of

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twenty percent (20%) of the preceding month’s income credited to Plaintiff’s trust account. The

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California Department of Corrections is required to send to the Clerk of the Court payments from

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Plaintiff’s trust account each time the amount in the account exceeds $10.00, until the statutory filing

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fee is paid in full. 28 U.S.C. § 1915(b)(2).

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Accordingly, IT IS HEREBY ORDERED that:

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The findings and recommendations issued on November 27, 2017, (ECF No. 12), are

VACATED;

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2.

Plaintiff's motion to proceed in forma pauperis (ECF No. 14) is GRANTED;

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3.

The Director of the California Department of Corrections or his/her designee shall

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collect payments from Plaintiff’s prison trust account in an amount equal to twenty per cent

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(20%) of the preceding month’s income credited to the prisoner’s trust account and shall

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forward those payments to the Clerk of the Court each time the amount in the account exceeds

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$10.00, in accordance with 28 U.S.C. § 1915(b)(2), until a total of $350.00 has been collected and
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forwarded to the Clerk of the Court. The payments shall be clearly identified by the name and

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number assigned to this action;

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4.

The Clerk of the Court is directed to serve a copy of this order and a copy of Plaintiff=s

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in forma pauperis application on the Director of the California Department of Corrections, via the

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court’s electronic case filing system (CM/ECF); and

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5.

The Clerk of the Court is directed to serve a copy of this order on the Financial

Department, U.S. District Court, Eastern District of California.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

December 8, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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