Bryant v. Select Services Portfolio et al, No. 1:2016cv01642 - Document 12 (E.D. Cal. 2017)

Court Description: ORDER Adopting 8 FINDINGS AND RECOMMENDATIONS and DENYING Plaintiff's 2 5 11 Application to Proceed Without Prepayment of Fees; Thirty Day Deadline signed by Chief Judge Lawrence J. O'Neill on 1/12/2017. (Sant Agata, S)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARY J. BRYANT, Plaintiff, 12 13 Case No. 1:16-cv-1642-LJO-SAB ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING PLAINTIFF’S APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES v. 14 SELECT SERVICES PORTFOLIO, et al., 15 Defendants. (ECF No. 2, 5, 8, 11) THIRTY DAY DEADLINE 16 17 18 Plaintiff Mary Bryant, proceeding pro se, filed this action on October 31, 2016. (ECF 19 No. 1.) The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 20 636(b)(1)(B) and Local Rule 302. 21 On December 20, 2016, the Magistrate Judge filed a findings and recommendations 22 which recommended that Plaintiff’s application to proceed without prepayment of fees be 23 denied. The findings and recommendations was served on Plaintiff and contained notice that any 24 objections to the findings and recommendations were to be filed within twenty days from the 25 date of service. On January 9, 2017, Plaintiff filed a third application to proceed without 26 prepayment of fees and a document entitled “Explanation – Fee Waiver” which the Court 27 construes as objections to the findings and recommendations. 28 While Plaintiff states that she barely has funds to pay for paperwork forms, copies, etc, 1 1 she does not address the findings that she has excess income which provides her with the funds 2 to pay the filing fee in this action. In her current application Plaintiff only lists $600.00 rental 3 income and does not explain why she has deleted the $900.00 per month that she stated that she 4 receives as employment income and the $320.00 she receives from retirement on her December 5 19, 2016 application. (ECF No. 5.) Further, her statement indicates that she does receive this 6 pension from her divorce. (ECF No. 11 at 6.) Plaintiff’s statement addresses the merits of her 7 claims in this action, however at this time the court is considering whether she is entitled to 8 proceed without prepayment of fees, not whether her claims have merit. 9 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted 10 a de novo review of this case. Having carefully reviewed the entire file, the Court finds the 11 findings and recommendations to be supported by the record and by proper analysis. 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. The findings and recommendations, filed December 20, 2016, is ADOPTED IN FULL; 14 15 2. Plaintiff’s application to proceed without prepayment of fees is DENIED; 16 3. Within thirty days from the date of service of this order, Plaintiff shall pay the filing fee of $400.00 in this action; and 17 18 4. If Plaintiff fails to pay the filing fee in compliance with this order, this action shall be dismissed. 19 20 21 22 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill _____ January 12, 2017 UNITED STATES CHIEF DISTRICT JUDGE 23 24 25 26 27 28 2