Silva v. Worth et al

Filing 11

FINDINGS and RECOMMENDATIONS to Dismiss 1 Action without Prejudice for Failure to Obey a Court Order and to Pay Filing Fee or File Application to Proceed In Forma Pauperis; 30-Day Deadline signed by Magistrate Judge Sheila K. Oberto on 1/11/2017. Referred to Judge Anthony W. Ishii. (Sant Agata, S)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 9 Case No. 1:16-cv-01131-AWI-SKO (PC) ANTHONY SILVA, 10 Plaintiff, 11 v. 12 WORTH, et al., 13 FINDINGS AND RECOMMENDATION TO DISMISS ACTION WITHOUT PREJUDICE FOR FAILURE TO OBEY A COURT ORDER AND TO PAY FILING FEE OR FILE APPLICATION TO PROCEED IN FORMA PAUPERIS (Doc. 10) Defendants. 30-DAY DEADLINE 14 15 16 17 18 19 20 21 22 23 24 Plaintiff, Anthony Silva, is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. On September 2, 2016, an order issued for Plaintiff to submit a correct application to proceed in forma pauperis, or to pay the filing fee within 45 days. (Doc. 6.)1 responded to the Court’s order. (Id.) Plaintiff was warned that recommendation for dismissal would issue if he failed to obey the order. (Id.) Further, on December 2, 2016, an order issued for Plaintiff to show cause within thirty days why the action should not be dismissed for his failure to prosecute and comply with the Court’s order. (Doc. 10.) Despite lapse of more than the allowed time, Plaintiff has failed to file any response. 25 26 Despite lapse of more than the time allowed, Plaintiff has not complied with or otherwise A civil action may not proceed absent the submission of either the filing fee or a completed application to proceed in forma pauperis. 28 U.S.C. §§ 1914, 1915. Based on 27 28 1 The proper form was provided with that order for Plaintiff’s use. (See Doc. 6-1, pp. 2-3.) 1 1 2 3 Plaintiff’s failure to comply with the Court’s order, dismissal of this action is appropriate. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006); Local Rule 110. 4 5 6 Accordingly, it is HEREBY RECOMMENDED that this action be dismissed without prejudice for Plaintiff's failure to comply with the Court’s order and to pay the filing fee or file the correct application to proceed in forma pauperis. 7 8 9 10 11 12 13 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 thirty (30) 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 Recommendations.” Plaintiff is advised that failure to file objections within the specified time may result in the waiver of rights 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)). 14 15 16 17 IT IS SO ORDERED. Dated: January 11, 2017 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 2 .

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