Herrera v. Candia et al

Filing 30

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)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ARMANDO HERRERA, 12 No. 2:16-cv-0938 GEB KJN P Plaintiff, 13 v. 14 CANDIA, et al., 15 ORDER AND FINDINGS AND RECOMMENDATIONS Defendants. 16 17 On September 8, 2016, plaintiff filed a letter complaining of incidents that occurred on 18 September 2, 2016, and asks whether he can amend his complaint to include such allegations. 19 However, as plaintiff was advised in the court’s August 17, 2016 order, plaintiff must first sign 20 and file the request to proceed in forma pauperis. Failing that, he must pay the $400.00 filing fee 21 in order to proceed with this action. Moreover, as plaintiff was first informed on May 25, 2016, 22 plaintiff must exhaust his administrative remedies as to any claim prior to raising such claim in 23 federal court. (ECF No. 6 at 2.) Because plaintiff could not have exhausted his administrative 24 remedies as to an incident which occurred on September 2, 2016, prior to filing the instant action, 25 he may not include such allegations here. Thus, plaintiff’s motion to amend is denied without 26 prejudice. 27 28 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 1 application on or before September 30, 2016. (ECF No. 22.) The docket reflects that plaintiff 2 was sent another application to proceed in forma pauperis on September 12, 2016. 3 Plaintiff has been provided multiple opportunities to submit the application to proceed in 4 forma pauperis, yet has failed to submit the signed form. Therefore, the undersigned recommends 5 that this action be dismissed without prejudice. 6 7 Accordingly, IT IS HERE ORDERED that plaintiff’s motion to amend (ECF no. 28) is denied without prejudice; and 8 IT IS RECOMMENDED that this action be dismissed without prejudice. 9 These findings and recommendations are submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 11 after being served with these findings and recommendations, any party may file written 12 objections with the court and serve a copy on all parties. Such a document should be captioned 13 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 14 objections shall be filed and served within fourteen days after service of the objections. The 15 parties are advised that failure to file objections within the specified time may waive the right to 16 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 Dated: October 12, 2016 18 19 20 /herr0938.fifp 21 22 23 24 25 26 27 28 2

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