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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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 DAVID E. GIVENS, 11 12 13 14 15 16 Plaintiff, No. 2:12-cv-0687 KJN P vs. L.D. ZAMORA, et al., Defendants. ORDER / Plaintiff is a state prisoner proceeding without counsel in this civil rights action 17 filed pursuant to 42 U.S.C. § 1983. Plaintiff has consented to the jurisdiction of the undersigned 18 magistrate judge for all purposes. (Dkt. No. 5.) See 28 U.S.C. § 636(c); Local Rule 305(a). 19 By order filed on September 21, 2012, this court informed plaintiff that it had 20 inadvertently granted plaintiff in forma pauperis status, because the undersigned was then 21 unaware that plaintiff is subject to the “three strikes rule” set forth in 28 U.S.C. § 1915(g). (See 22 Dkt. No. 12.) The court directed plaintiff to file, within fourteen (14) days, a declaration that: 23 (1) demonstrates that plaintiff should retain in forma pauperis status because, under the 24 exception to the three strikes rule, plaintiff “is under imminent danger of serious physical injury,” 25 28 U.S.C. § 1915(g), or (2) concedes that plaintiff is unable to make the showing required for 26 application of this exception and, therefore, that plaintiff chooses to either (a) pay the full filing 1 1 2 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 3 filed a declaration nor otherwise communicated with the court. The court construes plaintiff’s 4 inaction as a request for voluntary dismissal of this action, pursuant to Rule 41(a)(2), Federal 5 Rules of Civil Procedure. While dismissal of this action is also warranted by plaintiff’s failure to 6 respond to an order of this court, see Fed. R. Civ. P. 42(b); Local Rule 110, the court will dismiss 7 this action without prejudice. 8 9 10 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 11 12 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 13 14 give0687.dsms.3strikes. 15 16 17 18 19 20 21 22 23 24 25 26 2

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