(PC) Herrera-Garcia v. Sheryll, No. 1:2017cv00735 - Document 12 (E.D. Cal. 2017)

Court Description: ORDER VACATING 8 Findings and Recommendations Entered on August 3, 2017; FINDINGS and RECOMMENDATIONS Recommending That Plaintiff's 9 Application to Proceed In Forma Pauperis be Denied and That Plaintiff be Required to Pay the Filing Fee in Full, signed by Magistrate Judge Erica P. Grosjean on 8/21/17. Objections to F&R Due Within Twenty One Days. (Marrujo, C)

Download PDF
(PC) Herrera-Garcia v. Sheryll Doc. 12 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 Plaintiff, 8 9 10 Case No. 1:17-cv-00735-DAD-EPG (PC) MANUEL HERRERA-GARCIA, ORDER VACATING FINDINGS AND RECOMMENDATIONS ENTERED ON AUGUST 3, 2017 v. SHERYLL, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS BE DENIED AND THAT PLAINTIFF BE REQUIRED TO PAY THE FILING FEE IN FULL Defendant. 11 12 13 (ECF NO. 9) 14 TWENTY-ONE DAY DEADLINE 15 16 Manuel Herrera-Garcia (“Plaintiff") is a state prisoner proceeding pro se with this civil 17 18 rights action filed pursuant to 42 U.S.C. § 1983. 19 On May 31, 2017, the Court issued an order giving Plaintiff forty-five days to either pay 20 the $400 filing fee or submit an application to proceed in forma pauperis. (ECF No. 7). 21 Plaintiff was warned that his case would be dismissed if he did not pay the filing fee or submit 22 an application to proceed in forma pauperis. (Id.). The time period expired, and Plaintiff did 23 not pay the filing fee, submit an application to proceed in forma pauperis, or otherwise respond 24 to the Court’s order. 25 recommendations, recommending that this action be dismissed, without prejudice, for 26 Plaintiff’s failure to pay the filing fee or file an application to proceed in forma pauperis. (ECF 27 No. 8). 28 Accordingly, on August 3, 2017, the Court issued findings and On August 16, 2017, Plaintiff filed an application to proceed in forma pauperis. (ECF 1 Dockets.Justia.com 1 No. 9). Accordingly, the Court will vacate its findings and recommendations entered on 2 August 3, 2017. 3 However, after reviewing Plaintiff’s application, it appears that Plaintiff can afford the 4 costs of this action. While the Court has not yet received a certified copy of Plaintiff’s prison 5 trust account statement, according to Plaintiff’s application, during the last six months Plaintiff 6 received an average deposit of $500. Additionally, Plaintiff has stated that he has $50,000 in 7 cash. Accordingly, the Court will recommend that Plaintiff’s application to proceed in forma 8 pauperis be denied, and that Plaintiff be required to pay the full filing fee of $400.00. 9 Accordingly, based on the foregoing, IT IS HEREBY RECOMMENDED that: 10 1. Plaintiff's application to proceed in forma pauperis be DENIED; and 11 2. If these findings and recommendations are adopted, that Plaintiff be required to 12 pay the $400 filing fee in full within 30 days of the date the order adopting these findings and 13 recommendations is entered. 14 These findings and recommendations are submitted to the United States District Judge 15 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty- 16 one (21) days after being served with these findings and recommendations, Plaintiff may file 17 written objections with the court. 18 Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file 19 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 20 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 21 (9th Cir. 1991)). 22 23 Additionally, IT IS Such a document should be captioned "Objections to HEREBY ORDERED that the Court’s findings and recommendations, entered on August 3, 2017, are VACATED. 24 25 26 IT IS SO ORDERED. Dated: August 21, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 27 28 2

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.