Opinion
1:22-cv-01290-ADA-CDB (PC)
01-20-2023
NORVELL ANDREW, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants.
ORDER VACATING FINDINGS AND RECOMMENDATIONS TO DISMISS THIS CASE (DOC. 10)
ORDER GRANTING PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS (DOC. 15)
ORDER DENYING AS MOOT PLAINTIFF'S MOTION TO ALTER OR AMEND (DOCS. 11, 13)
Plaintiff Norvell Andrew is a federal prisoner proceeding pro se in this civil rights action mis-filed under both Bivens and 42 U.S.C. § 1983. On December 9, 2022, this Court issued findings and recommendations to dismiss this case for Plaintiff's failure to submit an application to proceed in forma pauperis (“IFP”) or pay the filing fee as ordered by the Court on October 14, 2022. (Docs. 10, 8.)
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
Instead of complying, Plaintiff filed a motion requesting the Court “to alter or amend its decision to dismiss his case” and a handwritten copy of the motion. (Docs. 11, 13.) By this motion, Plaintiff also requests the Court to subpoena video records and sign-in logs of incoming and outgoing staff at the Special Housing Unit. (Id. at 1.) Plaintiff indicates this would prove he gave his IFP motion in a timely manner to Counselor Guevara for filing. (Id. at 1-2.)
On January 18, 2022, Plaintiff filed an application to proceed IFP dated October 11, 2022. (Doc. 15.) Plaintiff has made the showing required by subsection 1915(a) and will be allowed to proceed IFP.
Accordingly, it is hereby ORDERED:
1. The findings and recommendations issued on December 9, 2022, (Doc. 10), are VACATED;
2. Plaintiff's motion to proceed in forma pauperis, (Doc. 15), is GRANTED; and
3. Plaintiff's motions to alter or amend, (Docs. 11, 13), are DENIED AS MOOT.
Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action and to make monthly payments in the amount of twenty percent (20%) of the preceding month's income credited to Plaintiff's trust account. 28 U.S.C. § 1915(b)(1). The Warden of U.S. Penitentiary Coleman II is required to send to the Clerk of the Court payments from Plaintiff's account each time the amount in the account exceeds $10.00, until the statutory filing fee is paid in full. 28 § U.S.C. 1915(b)(2).
Accordingly, it is further ORDERED:
1. The Warden of U.S. Penitentiary Coleman II or his designee shall collect
payments from Plaintiff's prison trust account in an amount equal to twenty percent (20%) of the preceding month's income credited to the prisoner's trust account and shall forward those payments to the Clerk of Court each time the amount in the account exceeds $10.00, in accordance with 28 U.S.C. § 1915(b)(2), until a total of $350.00 has been collected and forwarded to the Clerk of Court. The payments shall be clearly identified by the name and number assigned to this action.
2. The Clerk of Court is directed to serve a copy of this order and a copy of Plaintiff's in forma pauperis application on the Warden of U.S. Penitentiary Coleman II, P.O. Box 1024, Coleman, FL 33521.
3. The Clerk of Court is directed to serve a copy of this order on the Financial Department, U.S. District Court, Eastern District of California, Sacramento Division.
IT IS SO ORDERED.