(PC) Simms v. Edwards ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DEJWAN SIMMS, Case No. 1:22-cv-00028-BAM (PC) 12 Plaintiff, ORDER VACATING ORDER TO SUBMIT APPLICATION TO PROCEED IN FORMA 13 v. PAUPERIS (ECF No. 4) 14 EDWARDS, ORDER DIRECTING CLERK OF COURT TO 15 Defendant. RANDOMLY ASSIGN DISTRICT JUDGE TO ACTION 16 FINDINGS AND RECOMMENDATION 17 THAT PLAINTIFF’S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS BE 18 DENIED (ECF No. 5) 19 FOURTEEN (14) DAY DEADLINE 20 21 Plaintiff Dejwan Simms (“Plaintiff”) is a state prisoner proceeding pro se in this civil 22 rights action pursuant to 42 U.S.C. § 1983. 23 Plaintiff initiated this action on January 6, 2022, (ECF No. 1), but did not include a filing 24 fee or an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. On January 10, 25 2022, the Court issued an order for Plaintiff to submit an application to proceed in forma pauperis 26 or to pay the filing fee within forty-five days to proceed with this action. (ECF No. 4.) The same 27 day, Plaintiff filed his application to proceed in forma pauperis, together with a prisoner trust 28 account statement. (ECF No. 5.) As Plaintiff’s application and the Court’s order appear to have 1 crossed in the mail, and Plaintiff has submitted the required application, the Court finds it 2 appropriate to vacate the January 10, 2022 order. 3 Examination of Plaintiff’s application to proceed in forma pauperis and the attached trust 4 account statement reveals that Plaintiff is able to afford the costs of this action. Specifically, 5 Plaintiff’s current available balance in his inmate trust account is $914.77. (ECF No. 5.) 6 Accordingly, IT IS HEREBY ORDERED as follows: 7 1. The Court’s January 10, 2022 order directing Plaintiff to submit an application to proceed 8 in forma pauperis, (ECF No. 4), is VACATED; and 9 2. The Clerk of the Court is directed to randomly assign a District Judge to this action. 10 * * * 11 Further, it is HEREBY RECOMMENDED that: 12 1. The motion to proceed in forma pauperis, (ECF No. 5), be DENIED; and 13 2. Plaintiff be ORDERED to pay the $402.00 initial filing fee in full to proceed with this 14 action. 15 These Findings and Recommendations will be submitted to the United States District 16 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 17 fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may 18 file written objections with the court. The document should be captioned “Objections to 19 Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised that the failure to file 20 objections within the specified time may result in the waiver of the “right to challenge the 21 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 22 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 23 IT IS SO ORDERED. 24 25 Dated: January 11, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 26 27 28