(PC) Perry v. Hill et al, No. 2:2021cv01719 - Document 8 (E.D. Cal. 2023)

Court Description: ORDER signed by Magistrate Judge Deborah Barnes on 5/14/2023 VACATING the 5 Findings and Recommendations. The Clerk shall send plaintiff a blank civil rights complaint form and an application to proceed ifp. Plaintiff has 30 days to file an amended complaint. Plaintiff shall also submit, within 30 days, either the fee in the amount of $402.00 or a properly completed application to proceed ifp. (Yin, K)

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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 THOMAS EDWARD PERRY, 12 No. 2:21-cv-01719 DAD DB P Plaintiff, 13 v. 14 ORDER VACATING FINDINGS AND RECOMMENDATIONS RICK HILL, et al., 15 Defendants. 16 17 18 Plaintiff is a state prisoner proceeding pro se and in forma pauperis. Plaintiff seeks relief 19 pursuant to 42 U.S.C. § 1983. This matter is before the undersigned pursuant to Local Rule 302 20 and 28 U.S.C. § 636(b)(1). By order filed October 4, 2021, the court found plaintiff had not filed a properly 21 22 completed and signed an in forma pauperis affidavit or paid the required filing fee of $350.00 23 plus the $52.00 administrative fee.1 In the same order, the court found plaintiff’s complaint did 24 not state a claim and granted plaintiff thirty days leave to file an amended complaint. The time 25 granted expired, and plaintiff did not file an amended complaint or otherwise respond to the 26 27 28 1 If leave to file in forma pauperis is granted, plaintiff will still be required to pay the filing fee but will be allowed to pay it in installments. Litigants proceeding in forma pauperis are not required to pay the $52.00 administrative fee. 1 1 court’s order. On March 28, 2023, the undersigned recommended this action be dismissed 2 without prejudice. (ECF No. 5.) 3 In response to the recommendation to dismiss this action, plaintiff filed objections 4 indicating he did not receive the October 4, 2021 order. (ECF Nos. 6, 7.) Plaintiff also requests 5 that any the dismissal be without prejudice so he can re-file. (Id.) 6 Finding good cause, the undersigned will vacate the March 28, 2023 findings and 7 recommendations and grant plaintiff 30 days to file an amended complaint. Plaintiff must also file 8 a properly completed and signed in forma pauperis affidavit or pay the required filing fee of 9 $350.00 plus the $52.00 administrative fee. Plaintiff is cautioned that the in forma pauperis 10 application form includes a section that must be completed by a prison official, and the form must 11 be accompanied by a certified copy of plaintiff’s prison trust account statement for the six-month 12 period immediately preceding the filing of this action. 13 Good cause appearing, IT IS HEREBY ORDERED: 14 1. The findings and recommendations filed March 28, 2023 (ECF No. 5) are VACATED. 15 2. The Clerk of the Court shall send plaintiff a blank civil rights complaint form and an 16 Application to Proceed In Forma Pauperis By a Prisoner for use in a civil rights action. 17 18 3. Plaintiff is granted 30 days from the date of this order in which to file an amended complaint. 19 4. Plaintiff shall also submit, within thirty days from the date of this order, either the 20 $350.00 filing fee plus the $52.00 administrative fee or a properly completed application to 21 proceed in forma pauperis on the form provided with this order. 22 5. Plaintiff is cautioned that failure to comply with this order or seek an extension of time 23 to do so will result in dismissal of this action without prejudice. 24 //// 25 //// 26 //// 27 //// 28 //// 2 1 6. If plaintiff wishes to voluntarily dismiss this case without prejudice, he may do so by 2 filing a notice of voluntary dismissal which will terminate this action by operation of law without 3 prejudice. Fed. R. Civ. P. 41(a)(1)(A)(i). 4 Dated: May 14, 2023 5 6 7 DLB7: perr1719.vacfrs 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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