Opinion
No.: 1:18-cv-00879-BAM (PC)
11-01-2018
KAREEM J. HOWELL, Plaintiff, v. J. FLORES, et al., Defendant(s).
ORDER VACATING FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO PAY FILING FEE, FAILURE TO OBEY COURT ORDER, AND FAILURE TO PROSECUTE (Doc. No. 7)
Plaintiff Kareem J. Howell is a state prisoner proceeding pro se in a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action by filing a complaint on June 27, 2018. (Doc. No. 1.) Plaintiff did not pay the $400.00 filing fee, or submitted an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Thus, on June 29, 2018, the Court ordered Plaintiff to pay the filing fee in this action, or submit an application to proceed in forma pauperis, within forty-five (45) days. (Doc. No. 4.)
On August 22, 2018, Plaintiff filed a consent to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c) and Local Rule 302. (Doc. No. 6.) However, he did not otherwise respond to the Court's June 29, 2018 order. Therefore, on October 13, 2018, the Court issued findings and recommendations recommending dismissal of this action for the failure to pay a filing fee, failure to obey a court order, and failure to prosecute. (Doc. No. 7.)
Currently before the Court is Plaintiff's objections to the findings and recommendations, filed on October 31, 2018. (Doc. No. 10.) Plaintiff asserts that he attached an application to proceed in forma pauperis with his original complaint, and was unaware that it was not received by the Court. Plaintiff states that he received the Court's prior order of June 29, 2018 and then became aware of the missing application. He then attempted to send another application on July 12, 2018. Plaintiff is unsure why that second document was not received, and asserts that it may have been mail tampering. Plaintiff attaches a mail receipt in support.
Plaintiff requests that the findings and recommendations be denied for good cause shown. Plaintiff also attaches a motion to proceed in forma pauperis, which has now been filed. (Doc. No. 9.)
Based on Plaintiff's showing of good cause, the Court HEREBY ORDERS that the findings and recommendations issued on October 13, 2018 (Doc No. 7), are VACATED. The Court will obtain a certified trust account statement to evaluate Plaintiff's motion to proceed in forma pauperis. A separate order will issue on that matter in due course. IT IS SO ORDERED.
Dated: November 1 , 2018
/s/ Barbara A . McAuliffe
UNITED STATES MAGISTRATE JUDGE