Opinion
1:19-cv-01440-AWI-GSA-PC
12-05-2019
JUAN MONTENEGRO, Plaintiff, v. CDCR-MEDICAL, Defendant.
ORDER WITHDRAWING FINDINGS AND RECOMMENDATIONS ENTERED ON OCTOBER 23, 2019
(ECF No. 8.)
ORDER FOR CLERK TO SEND PLAINTIFF AN APPLICATION TO PROCEED IN FORMA PAUPERIS
ORDER FOR PLAINTIFF TO COMPLETE AND FILE THE APPLICATION WITHIN TWENTY (20) DAYS
I. BACKGROUND
Juan Montenegro ("Plaintiff") is a state prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. §1983. On October 15, 2019, Plaintiff filed the Complaint commencing this action, together with an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF Nos. 1, 2.)
On October 23, 2019, the undersigned entered findings and recommendations, recommending that Plaintiff's application to proceed in forma pauperis be denied and Plaintiff be required to pay the $400.00 filing fee in full for this action. (ECF No. 8.) Plaintiff was granted fourteen days in which to file objections to the findings and recommendations. (Id.) The fourteen-day time period for Plaintiff to file objections expired and Plaintiff did not file timely objections or otherwise respond to the findings and recommendations. However, on December 2, 2019, Plaintiff filed untimely objections. (ECF No. 9.)
II. PLAINTIFF'S OBJECTIONS
In his objections, Plaintiff declares under penalty of perjury that he "made an [sic] typo in his civil complaint form and it should be stricken from the record, so that the Plaintiff could proceed pro per, the Plaintiff is currently indigent and could not afford to pay any court cost of any kind." (ECF No. 9 at 1.)
In his prior application to proceed in forma pauperis, Plaintiff declared under penalty of perjury that he had received money from multiple sources over the last twelve months, including $500,000.00 from "rent payments, interest or dividends" and $500,000.00 from "other sources." (ECF No. 2 at 1 ¶ 3.) Plaintiff also declared that he has $40 million in bank accounts and owns $40 million in valuable property. (Id. at 2 ¶¶ 4, 5.) These representations are not simple "typos" and must be corrected.
The court finds no good cause to strike Plaintiff's Complaint from the record. However, Plaintiff shall be required to file a new application to proceed in forma pauperis for the court's consideration. The court shall withdraw the findings and recommendations entered on October 23, 2019. Within twenty (20) days, Plaintiff is required to file a corrected application to proceed in forma pauperis on the court's form. Plaintiff's answers to the questions on the new application must be honest and complete, and he is required to sign the application under penalty of perjury.
III. CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that:
1. The findings and recommendations entered on October 23, 2019, are WITHDRAWN;
2. The Clerk shall send Plaintiff an application to proceed in forma pauperis on the court's form;
3. Within twenty (20) days of the date of service of this order, Plaintiff is required to complete the application and file it with the court; and
4. Plaintiff's failure to comply with this order may result in the dismissal of this entire action.IT IS SO ORDERED.
Dated: December 5 , 2019
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE