(PC) Wilson v. Wever et al, No. 2:2009cv02191 - Document 19 (E.D. Cal. 2009)

Court Description: ORDER signed by Magistrate Judge Craig M. Kellison on 11/9/09 ORDERING that pltf's 18 motion to proceed IFP is GRANTED; pltf to pay the $350.00 filing fee w/ no initial partial filing fee; pltf's 17 motion for default judgment is DENIED; and the 16 findings and recommendations are VACATED. (cc: Financial) (Yin, K)

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(PC) Wilson v. Wever et al Doc. 19 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LEE WILSON, Plaintiff, 12 13 14 vs. Defendants. / 16 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 17 19 ORDER SANDRA LEE WEVER, et al., 15 18 No. CIV S-09-2191-LKK-CMK-P U.S.C. § 1983. Plaintiff initially filed a defective application to proceed in forma pauperis in that 20 it was not accompanied by a certified copy of plaintiff’s inmate trust account statement. On 21 September 1, 2009, the court issued an order providing plaintiff 30 days within which to cure the 22 defect or otherwise resolve the fee status for this case. A second application to proceed in forma 23 pauperis filed on September 14, 2009, was likewise defective. Again, on October 2, 2009, the 24 court issued an order providing plaintiff an additional opportunity to either cure the defect or 25 resolve the fee status. Two more in forma pauperis applications filed on October 14, 2009, and 26 October 16, 2009, were also defective. Given plaintiff’s apparent inability or unwillingness to 1 Dockets.Justia.com 1 comply with the court’s prior orders by curing the defect or paying the filing fees, the court 2 issued findings and recommendations on October 22, 2009, that this action be dismissed for lack 3 of prosecution. 4 On November 3, 2009, plaintiff filed: (1) a fifth application for leave to proceed in 5 forma pauperis (Doc. 18); and (2) a motion for default judgment (Doc. 17). Plaintiff has 6 submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). The request to 7 proceed in forma pauperis will, therefore, be granted and the October 22, 2009, dismissal 8 findings and recommendations will be vacated. 9 As to plaintiff’s request for default judgment, the court has not yet screened 10 plaintiff’s complaint to determine whether service is appropriate and no defendant has been 11 served. Because no response to plaintiff’s complaint is due, default is not appropriate. See Fed. 12 R. Civ. P. 55. Now that the fee status of this case has been resolved, plaintiff’s complaint will be 13 addressed by separate order. 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. Plaintiff’s motion for leave to proceed in forma pauperis (Doc. 18) is 2. Plaintiff is required to pay the full statutory filing fee of $350.00 for this 16 granted; 17 18 action pursuant to 28 U.S.C. §§ 1914(a) and 1915(b)(1); 3. 20 No initial partial filing fee will be assessed pursuant to 28 U.S.C. 4. 19 Plaintiff will be obligated for monthly payments of twenty percent of the § 1915(b)(1); 21 22 preceding month’s income credited to plaintiff’s inmate trust account, such payments to be 23 forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s 24 account exceeds $10.00, until the statutory filing fee is paid in full, pursuant to 28 U.S.C. 25 § 1915(b)(2); 26 /// 2 1 5. Plaintiff’s motion for default judgment (Doc. 17) is denied; and 2 6. The findings and recommendations issued on October 22, 2009, are 3 vacated. 4 5 6 7 DATED: November 9, 2009 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3

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