Opinion
1:21-cv-01020-DAD-GSA-PC
09-27-2021
ISAIAH PETILLO, Plaintiff, v. JASSO, et al., Defendants.
ORDER WITHDRAWING FINDINGS AND RECOMMENDATIONS ISSUED ON AUGUST 30, 2021 (ECF NO. 6.) ORDER FOR CLERK TO SEND PLAINTIFF AN APPLICATION TO PROCEED IN FORMA PAUPERIS ORDER FOR PLAINTIFF TO EITHER SUBMIT APPLICATION TO PROCEED IN FORMA PAUPERIS OR PAY $402.00 FILING FEE THIRTY-DAY DEADLINE
GARY S. AUSTIN UNITED STATES MAGISTRATE JUDGE
Isaiah Petillo (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on June 28, 2021. (ECF No. 1.)
On August 30, 2021, the court issued findings and recommendations recommending that this case be dismissed for Plaintiff's failure to comply with the court's order issued on July 1, 2021, which required Plaintiff to either submit an application to proceed in forma pauperis or pay the $402.00 filing fee for this case, within thirty days. (ECF Nos. 3, 6.) On September 8, 2021, Plaintiff filed objections to the findings and recommendations. (ECF No. 8.)
In his objections Plaintiff responded that he did not receive the court's order issued on July 1, 2021. Plaintiff also responded that on June 28, 2021, he paid $800.00 to this court for payment of the filing fees for two of his cases: 1:18-cv-00217-NONE-GSA-PC (Petillo v. Galliger) and 1:19-cv-00908-NONE-SAB-PC (Petillo v. Jasso).
The court's financial records confirm that Plaintiff's $800.00 payment was received on June 28, 2021, with a written note to the court from M. Rivera, Accountant I Specialist, Salinas Valley State Prison (SVSP) stating, “Inmate Isaiah Petillo T44601 is paying $400.00 for case #1:18-cv-00217-GSA and $400 for case #19-cv-00908-SAB.” (Court Financial Record.) As directed, the court credited each of these two cases with payment of $400.00. (Id.)
Plaintiff seems to believe that $400.00 of his payment should have been credited to the present case 1:21-cv-01020-DAD-GSA-PC. Plaintiff is incorrect. Pursuant to instructions from the Account I Specialist, M. Rivera, none of the $800.00 sent by Plaintiff was applied to the filing fee for this case.
Therefore, Plaintiff has not paid the $402.00 filing fee or submitted an application to proceed in forma pauperis for this case.
The court's filing fee increased from $400.00 to $402.00 on December 1, 2020. 28 U.S.C. § 1914.
The court shall withdraw the findings and recommendations issued on August 30, 2021. Plaintiff shall be granted 30 days from the date of service of this order in which to either pay the $402.00 filing fee for this case or submit an application to proceed in forma pauperis.
Accordingly, based on the foregoing, IT IS HEREBY ORDERED that:
1 The findings and recommendations issued on August 1, 2021, are WITHDRAWN;
2. The Clerk shall send Plaintiff an application to proceed in forma pauperis;
3. Within thirty (30) days from the date of service of this order, Plaintiff is required to either pay the $402.00 filing fee for this action or submit an application to proceed in forma pauperis;
4. Plaintiff's failure to comply with this order shall result in a recommendation that this case be dismissed.
IT IS SO ORDERED.