Opinion
Case No. 1:18-cv-00871-DAD-BAM (PC)
08-30-2018
JOSE TIMOTEO GUEVARA, Plaintiff, v. SUPERIOR COURT COUNTY OF SAN MATEO, et al., Defendants.
ORDER VACATING FINDINGS AND RECOMMENDATIONS
(ECF No. 12) FINDINGS AND RECOMMENDATIONS RECOMMENDING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS BE DENIED (ECF No. 13)
FOURTEEN (14) DAY DEADLINE
Plaintiff Jose Timoteo Guevara ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on June 11, 2018, in the United States District Court for the Northern District of California. (ECF No. 1.) That same date, the Northern District issued an order directing Plaintiff to submit an application to proceed in forma pauperis or pay the filing fee within twenty-eight days. (ECF No. 3.) On June 21, 2018, the case was transferred to the Eastern District. (ECF No. 6.)
On July 19, 2018, the Court ordered Plaintiff, within twenty-one (21) days, to submit a completed application to proceed in forma pauperis, pay the $400.00 filing fee, or show cause in writing why this action should not be dismissed for failure to prosecute and failure to obey a court order. (ECF No. 10.) On August 20, 2018, after Plaintiff failed to comply with the Court's orders, the Court issued findings and recommendations recommending that this action be dismissed, without prejudice, for Plaintiff's failure to pay the filing fee or file an application to proceed in forma pauperis, failure to obey Court orders, and failure to prosecute. (ECF No. 12.)
On August 29, 2018, Plaintiff filed a motion to proceed in forma pauperis. (ECF No. 13.) Although Plaintiff did not characterize the filing as an objection to the Court's findings and recommendations, nor did he explain his failure to submit his application prior to this date, the Court finds it appropriate to vacate the August 20, 2018 findings and recommendations.
However, examination of Plaintiff's application and the included certified trust account statement reveals that Plaintiff is able to afford the costs of this action. Specifically, during the prior six months, Plaintiff has held an average monthly balance of $1,400.65 in his account and received average monthly deposits of $171.12. Plaintiff's current balance is $978.27. (ECF No. 13.)
Accordingly, the Court HEREBY ORDERS that the findings and recommendations issued on August 20, 2018, (ECF No. 12), are VACATED.
Further, for the reasons stated, the Court HEREBY RECOMMENDS that the motion to proceed in forma pauperis (ECF No. 13) be DENIED, pursuant to 28 U.S.C. § 1915; and Plaintiff be ORDERED to pay the $400.00 initial filing fee for this action.
These Findings and Recommendation will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being served with these Findings and Recommendation, the parties may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendation." Plaintiff is advised that failure to file objections within the specified time may result in the waiver of the "right to challenge the magistrate's factual findings" on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED.
Dated: August 30 , 2018
/s/ Barbara A . McAuliffe
UNITED STATES MAGISTRATE JUDGE