Herrera v. Candia et al
ORDER ; FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 10/12/16 ORDERING that 28 Motion to Amend the Complaint is DENIED without prejudice; It is RECOMMENDED that this action be dismissed without prejudice. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days. (Dillon, M)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
No. 2:16-cv-0938 GEB KJN P
CANDIA, et al.,
ORDER AND FINDINGS AND
On September 8, 2016, plaintiff filed a letter complaining of incidents that occurred on
September 2, 2016, and asks whether he can amend his complaint to include such allegations.
However, as plaintiff was advised in the court’s August 17, 2016 order, plaintiff must first sign
and file the request to proceed in forma pauperis. Failing that, he must pay the $400.00 filing fee
in order to proceed with this action. Moreover, as plaintiff was first informed on May 25, 2016,
plaintiff must exhaust his administrative remedies as to any claim prior to raising such claim in
federal court. (ECF No. 6 at 2.) Because plaintiff could not have exhausted his administrative
remedies as to an incident which occurred on September 2, 2016, prior to filing the instant action,
he may not include such allegations here. Thus, plaintiff’s motion to amend is denied without
On August 17, 2016, plaintiff was provided an application to proceed in forma pauperis
and warned that no further extensions of time would be granted. Plaintiff was directed to file his
application on or before September 30, 2016. (ECF No. 22.) The docket reflects that plaintiff
was sent another application to proceed in forma pauperis on September 12, 2016.
Plaintiff has been provided multiple opportunities to submit the application to proceed in
forma pauperis, yet has failed to submit the signed form. Therefore, the undersigned recommends
that this action be dismissed without prejudice.
Accordingly, IT IS HERE ORDERED that plaintiff’s motion to amend (ECF no. 28) is
denied without prejudice; and
IT IS RECOMMENDED that this action be dismissed without prejudice.
These findings and recommendations are submitted to the United States District Judge
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
after being served with these findings and recommendations, any party may file written
objections with the court and serve a copy on all parties. Such a document should be captioned
“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the
objections shall be filed and served within fourteen days after service of the objections. The
parties are advised that failure to file objections within the specified time may waive the right to
appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
Dated: October 12, 2016
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?