Opinion
2:22-cv-1842 DAD AC P
02-28-2023
JOSHUA JASON DALKE, Plaintiff, v. SACRAMENTO CORRECTIONS, et al, Defendants.
ORDER
ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE.
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. On October 28, 2022, the undersigned issued findings and recommendations that recommended that plaintiff's motion for leave to proceed in forma pauperis be denied. ECF No. 9. On February 13, 2023, the district judge adopted the findings and recommendations and plaintiff was ordered to pay the filing fee in full. ECF No. 12. The same day, the court received plaintiff's filing titled “Appealing for Findings and Recommendations” (ECF No. 13) and a check for $408. The file reflects that the Clerk's Office docketed the filing as a notice of appeal, which was processed to the Ninth Circuit (ECF No. 14), and the check was returned with instructions to send payment of $402 for the filing fee. Plaintiff then filed a request for status of the filing fee and a notice regarding paying the filing fees in which he questions the notice he received to pay $505.00 for filing an appeal. ECF Nos. 16, 17. The documents will be construed as motions for clarification.
Plaintiff is advised that the court did receive his check, but it was returned because the Clerk's Office cannot issue refunds, so payment of filing fees must be exact. Plaintiff will therefore be granted additional time to pay the filing fee. With respect to plaintiff's questions regarding the $505.00 appellate filing fee, plaintiff is advised that because he indicated that he was “appealing” the findings and recommendations, his filing was construed as a notice of appeal and that is why he received the notice regarding the appellate filing fee. It appears that plaintiff did not intend to file a notice of appeal to the Ninth Circuit (ECF No. 17 at 6), and if this is the case he should notify the Ninth Circuit that the appeal was opened in error. His appeal has been assigned case number 23-15207. ECF No. 15. In the future, plaintiff should not label his filings as “appeals” unless he is seeking to appeal to the Ninth Circuit. If he wants to object to findings and recommendations or seek reconsideration of orders in this court, he should title the filing “Objections” or “Motion for Reconsideration” as appropriate.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's request for status (ECF No. 16) and notice regarding payment of the filing fee (ECF No. 17) are construed as motions for clarification and are GRANTED to the extent clarification has been provided above.
2. Plaintiff shall have thirty days from the service of this order to pay the $402.00 in filing fees.