(PC) Simms v. Edwards

Opinion

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

Dated: January 11, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE