(PC) Herrera-Garcia v. Sheryll, No. 1:2017cv00735 - Document 13 (E.D. Cal. 2017)

Court Description: ORDER Adopting 12 Findings and Recommendations and DENYING Plaintiff's 9 Motion to Proceed IFP signed by District Judge Dale A. Drozd on 11/27/2017. (Sant Agata, S)

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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 MANUEL HERRERA-GARCIA, 12 13 14 15 Plaintiff, v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS SHERYLL, Defendant. (Doc. Nos. 9, 12) 16 17 18 19 No. 1:17-cv-00735-DAD-EPG Manuel Herrera-Garcia is a state prisoner proceeding pro se with this civil rights action brought pursuant to 42 U.S.C. § 1983. On August 16, 2017, plaintiff filed a motion to proceed in forma pauperis. (Doc. No. 9.) 20 On August 22, 2017, the assigned magistrate judge issued findings and recommendations, 21 recommending that plaintiff’s application to proceed in forma pauperis be denied, and that he be 22 required to pay the $400 filing fee within 30 days of the date the order adopting the findings and 23 recommendations is entered. (Doc. No. 12.) Plaintiff was provided twenty-one days to file 24 objections to those findings and recommendations. (Id.) To date, plaintiff has not done so, and 25 the time for doing so has passed. 26 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 304, this 27 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 28 court finds the findings and recommendations to be supported by the record and proper analysis, 1 1 except that plaintiff’s application to proceed in forma pauperis will be denied without prejudice 2 to being renewed. 3 Based upon what is now before the court, the undersigned cannot conclude that plaintiff is 4 unable to pay the $400 filing fee. In plaintiff’s application to proceed in forma pauperis filed 5 with the court on August 16, 2017, he stated under penalty of perjury that he possesses cash in the 6 amount of $50,000 and, in addition, indicated that he had received an average deposit into his 7 prisoner’s trust account of $500.00 per month over the past six months with his average balance 8 in that account being $500 as well. (Doc. No. 9 at 3, 5.) However, an “Inmate Statement Report” 9 submitted by the California Department of Corrections and Rehabilitation to the court on August 10 18, 2017, appears to state that as of that date plaintiff had a $0.00 balance in his prisoner’s trust 11 account. (Doc. No. 11.) Because the evidence before the court as to plaintiff’s financial 12 wherewithal is inconclusive, the court will adopt the pending findings and recommendations and 13 deny plaintiff’s motion to proceed in forma pauperis. However, this denial will be without 14 prejudice to plaintiff filing another application to proceed in forma pauperis clarifying his 15 financial condition and adequately demonstrating financial hardship. 16 For these reasons, 17 1. The findings and recommendations dated August 22, 2017 (Doc. No. 12) are 18 adopted in full, except that the denial of plaintiff’s motion shall be without 19 prejudice; 20 2. 21 Plaintiff’s motion to proceed in forma pauperis (Doc. No. 9) is denied without prejudice; 22 3. Plaintiff shall pay the $400 filing fee in full within 30 days of the date of issuance 23 of this order or submit a renewed application to proceed in forma pauperis 24 clarifying his financial condition and adequately demonstrating financial hardship; 25 and 26 ///// 27 ///// 28 ///// 2 1 4. 2 3 4 The Clerk of Court is directed to serve a copy of this order on the Financial Department, U.S. District Court, Eastern District of California, Fresno Division. IT IS SO ORDERED. Dated: November 27, 2017 UNITED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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