Givens v. Soltanian et al

Filing 13

ORDER signed by Magistrate Judge Kendall J. Newman on 10/18/2012 ORDERING that this action is DISMISSED without prejudice. CASE CLOSED. (Zignago, K.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID E. GIVENS,

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Plaintiff,

No. 2:12-cv-0687 KJN P

vs.
L.D. ZAMORA, et al.,
Defendants.

ORDER
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Plaintiff is a state prisoner proceeding without counsel in this civil rights action

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filed pursuant to 42 U.S.C. § 1983. Plaintiff has consented to the jurisdiction of the undersigned

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magistrate judge for all purposes. (Dkt. No. 5.) See 28 U.S.C. § 636(c); Local Rule 305(a).

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By order filed on September 21, 2012, this court informed plaintiff that it had

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inadvertently granted plaintiff in forma pauperis status, because the undersigned was then

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unaware that plaintiff is subject to the “three strikes rule” set forth in 28 U.S.C. § 1915(g). (See

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Dkt. No. 12.) The court directed plaintiff to file, within fourteen (14) days, a declaration that:

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(1) demonstrates that plaintiff should retain in forma pauperis status because, under the

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exception to the three strikes rule, plaintiff “is under imminent danger of serious physical injury,”

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28 U.S.C. § 1915(g), or (2) concedes that plaintiff is unable to make the showing required for

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application of this exception and, therefore, that plaintiff chooses to either (a) pay the full filing
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fee ($350.00) in this action, or (b) request that this action be dismissed without prejudice.
The time for responding to the court’s order has expired, and plaintiff has neither

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filed a declaration nor otherwise communicated with the court. The court construes plaintiff’s

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inaction as a request for voluntary dismissal of this action, pursuant to Rule 41(a)(2), Federal

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Rules of Civil Procedure. While dismissal of this action is also warranted by plaintiff’s failure to

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respond to an order of this court, see Fed. R. Civ. P. 42(b); Local Rule 110, the court will dismiss

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this action without prejudice.

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Accordingly, for good cause shown, IT IS HEREBY ORDERED that this action is
dismissed without prejudice. Fed. R. Civ. P. 41(a)(2).
DATED: October 18, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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give0687.dsms.3strikes.

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