Herrera v. Blandion

Filing 6

ORDER signed by Magistrate Judge Kendall J. Newman on 0818/17 vacating 4 FINDINGS AND RECOMMENDATIONS and denying 5 Motion for Extension of time. Plaintiff is granted 60 days from the date of this order in which to file a completed application to proceed in forma pauperis or pay the court's filing fee. The clerk of the court shall send plaintiff an application to proceed in forma pauperis by a prisoner. (Plummer, 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. 2:17-cv-1278 MCE KJN P

Plaintiff,
v.

ORDER

BLANDION,
Defendant.

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On August 14, 2017, plaintiff filed a motion for a ninety-day extension of time to file a

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“request for reassignment of judge.” (ECF No. 5 at 1.) Appended to the request was plaintiff’s

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declaration in which he states that on August 7, 2017, he met with his E.N.T. doctor, who told

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plaintiff he was going to be sent to an outside hospital for testing because plaintiff is bleeding off

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and on from his nose, and may again require surgery. Plaintiff claims it is difficult to get another

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prisoner to help on legal documents.

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Plaintiff does not explain why or on what basis he plans to request reassignment of judges.

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The record reflects that the court has not yet screened plaintiff’s complaint because he has

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not paid the court’s filing fee or filed an application to proceed in forma pauperis. Plaintiff was

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provided the application form by order filed June 29, 2017. Plaintiff may avoid an order

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dismissing his case by completing and filing the application to proceed in forma pauperis.

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Because plaintiff is a state prisoner, he is not required to obtain prison officials’ certification on

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the form; rather, the court will obtain plaintiff’s certified trust account statement directly from the

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prison. Therefore, no legal research is required for plaintiff to complete, sign, and file the

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application to proceed in forma pauperis.

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Moreover, although plaintiff claims that he is going to be sent for testing and may have to

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have surgery, he does not know when he will be hospitalized , if he will have to have surgery, and

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if so, when the surgery might take place.

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Plaintiff is required to diligently prosecute his case.1 The court cannot screen the

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complaint until plaintiff pays the court’s filing fee or is granted leave to proceed in forma

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pauperis. The Clerk is directed to send plaintiff another application to proceed in forma pauperis.

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In an abundance of caution, the August 10, 2017 findings and recommendations are vacated, and

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plaintiff is granted sixty days in which to file the completed application or pay the court’s filing

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fee. In the meantime, if plaintiff’s medical situation changes, he may seek a further extension at

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that time.
On the other hand, plaintiff’s underlying pleading addresses defendant’s actions taken on

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June 19, 2017. Plaintiff may wish to voluntarily dismiss this action and re-file it once his medical

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issues have been resolved.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations (ECF No. 4) are vacated;

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2. Plaintiff’s motion for a ninety day extension of time (ECF No. 5) is denied;

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3. Plaintiff is granted sixty days from the date of this order in which to file a completed

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application to proceed in forma pauperis or pay the court’s filing fee; and

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Rule 4(m) of the Federal Rules of Civil Procedure states that if a defendant is not served within
90 days after the complaint is filed, “the court -- on motion or on its own after notice to the
plaintiff -- must dismiss the action without prejudice or order service be made within a specified
time.” Fed. R. Civ. P. 4(m).
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4. The Clerk of the Court shall send plaintiff an application to proceed in forma pauperis

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by a prisoner.

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Dated: August 18, 2017

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/herr1278.36

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