(PC) Driver v. Spencer et al, No. 2:2020cv00839 - Document 14 (E.D. Cal. 2020)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 8/3/2020 VACATING the court's 5/6/2020 order; VACATING 12 Findings and Recommendations; and RECOMMENDING Plaintiff's Motion to Proceed IFP be denied and Plaintiff be granted 14 days within which to pay the filing fee for this action. Referred to Judge John A. Mendez. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)
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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 BILLY DRIVER, JR., 12 No. 2:20-cv-0839 JAM CKD P Plaintiff, 13 v. 14 ORDER AND R. SPENCER, et al., 15 FINDINGS AND RECOMMENDATIONS Defendants. 16 On May 6, 2020, the court denied plaintiff’s request to proceed in forma pauperis pursuant 17 18 to 28 U.S.C. § 1915(g). A recent unpublished Ninth Circuit decision calls into question the 19 ability of a magistrate judge in the Ninth Circuit to deny a request to proceed in forma pauperis.1 20 Good cause appearing, the court will vacate the May 6, 2020 order. Instead, the court will 21 recommend that the motion to proceed in forma pauperis be denied and that plaintiff be given14 22 days within which to pay the filing fee. 23 Accordingly, IT IS HEREBY ORDERED that: 24 1. The court’s May 6, 2020 order is vacated; and 25 2. The court’s June 8, 2020 findings and recommendations, in which the court 26 recommends, among other things, dismissal for plaintiff’s failure to pay the filing fee are vacated. 27 28 1 Cruz v. Smith, 2:19-cv-1027 JAM CKD P, ECF No. 27. 1 1 IT IS HEREBY RECOMMENDED that: 2 1. For the reasons stated in the court’s May 6, 2020 order, plaintiff’s motion to proceed in 3 forma pauperis be denied. 4 2. Plaintiff be granted 14 days within which to pay the filing fee for this action. 5 These findings and recommendations are submitted to the United States District Judge 6 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen after 7 being served with these findings and recommendations, plaintiff may file written objections with 8 the court. The document should be captioned “Objections to Magistrate Judge’s Findings and 9 Recommendations.” Plaintiff is advised that failure to file objections within the specified time 10 waives the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 11 1991). 12 Dated: August 3, 2020 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 1 driv0839.frs 19 20 21 22 23 24 25 26 27 28 2
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