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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ARMANDO HERRERA,

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No. 2:16-cv-0938 GEB KJN P

Plaintiff,

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v.

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CANDIA, et al.,

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ORDER AND FINDINGS AND
RECOMMENDATIONS
Defendants.

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On September 8, 2016, plaintiff filed a letter complaining of incidents that occurred on

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September 2, 2016, and asks whether he can amend his complaint to include such allegations.

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However, as plaintiff was advised in the court’s August 17, 2016 order, plaintiff must first sign

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and file the request to proceed in forma pauperis. Failing that, he must pay the $400.00 filing fee

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in order to proceed with this action. Moreover, as plaintiff was first informed on May 25, 2016,

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plaintiff must exhaust his administrative remedies as to any claim prior to raising such claim in

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federal court. (ECF No. 6 at 2.) Because plaintiff could not have exhausted his administrative

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remedies as to an incident which occurred on September 2, 2016, prior to filing the instant action,

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he may not include such allegations here. Thus, plaintiff’s motion to amend is denied without

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prejudice.

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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

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application on or before September 30, 2016. (ECF No. 22.) The docket reflects that plaintiff

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was sent another application to proceed in forma pauperis on September 12, 2016.

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Plaintiff has been provided multiple opportunities to submit the application to proceed in

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forma pauperis, yet has failed to submit the signed form. Therefore, the undersigned recommends

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that this action be dismissed without prejudice.

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Accordingly, IT IS HERE ORDERED that plaintiff’s motion to amend (ECF no. 28) is
denied without prejudice; and

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IT IS RECOMMENDED that this action be dismissed without prejudice.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be filed and served within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: October 12, 2016

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/herr0938.fifp

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