IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
May 29, 2009
BRIAN SEEFELDT, PLAINTIFF,
ARAMARK INC., DEFENDANTS.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se. He seeks relief pursuant to 42 U.S.C. § 1983 and has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to this court by Local Rule 72-302 pursuant to 28 U.S.C. § 636(b)(1). Plaintiff filed this action on February 26, 2009, and then filed a motion to stay on April 13, 2009.
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). An initial partial filing fee of $13.90 will be assessed by this order. 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
On April 13, 2009, plaintiff requested a motion to stay until after recovery from scheduled brain surgery, though plaintiff did not provide the date for the surgery. A stay is appropriate in these circumstances for six (6) months.
Defendant Aramark, Inc., though not served by the court, has requested an extension of time to reply to plaintiff's complaint and filed a motion to dismiss. A reply is not necessary until ordered by the court and a motion to dismiss is premature, as the court has not yet screened plaintiff's complaint.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's request to proceed in forma pauperis is granted;
2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff is assessed an initial partial filing fee of $13.90. All fees shall be collected and paid in accordance with this court's order to the Solano County Jail filed concurrently herewith.
3. The court's May 14, 2009, order granting defendant an extension of time to respond to the complaint (Doc. 7) is vacated.
4. Defendant's motion to dismiss (Doc. 10) is vacated without prejudice.
5. Plaintiff's motion to finalize (Doc. 11) is also vacated.
IT IS HEREBY RECOMMENDED that this action be stayed for six (6) months. Failure of plaintiff to update the court within that time, will result in a recommendation that this action be dismissed.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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