Whitaker v. Crane, et al.
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 12/2/2014 RECOMMENDING that this action be dismissed without prejudice. Referred to Judge Kimberly J. Mueller; Objections due within 14 days.(Yin, K)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JOSEPH WHITAKER,
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No. 2:13-cv-00505 KJM DAD P
Plaintiff,
v.
FINDINGS AND RECOMMENDATIONS
CRANE, et al.,
Defendants.
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On August 4, 2014, this court issued an order in this action denying plaintiff’s motion for
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a temporary restraining order, and dismissing plaintiff’s Second Amended Complaint with leave
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to amend. (See ECF No. 23.) At that time plaintiff was granted thirty days to file a Third
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Amended Complaint together with a new application to proceed in forma pauperis that included a
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certified copy of his prison trust account statement for the preceding six-month period. (Id.)
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Plaintiff was informed then that “[f]ailure . . . to timely file a new and properly completed
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application to proceed in forma pauperis and a Third Amended Complaint in accordance with this
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order will result in a recommendation that this action be dismissed.” (Id. at 8.)
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The thirty-day period has long since expired, and plaintiff has not responded to the court’s
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order. Plaintiff did file an untimely request, on October 24, 2014, for a blank USM-285 form and
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summons to allow him to serve a purported defendant not named in his Second Amended
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Complaint. (See ECF No. 24.) However, plaintiff’s untimely request was not responsive to the
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court’s August 4, 2014 order. Moreover, there is no operative pleading before the court, plaintiff
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has failed to file a third amended complaint in the time provided for him to do so and has still not
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filed a proper application to proceed in forma pauperis (see ECF No. 15).
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Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed without
prejudice.
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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after being served with these findings and recommendations, plaintiff may file written objections
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with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings
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and Recommendations.” Plaintiff is advised that failure to file objections within the specified
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time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153
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(9th Cir. 1991).1
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Dated: December 2, 2014
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DAD:4
whit0505.fifp.tac
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If plaintiff wishes to proceed with this action he may submit with his objections to these
findings and recommendations a proper, fully supported application to proceed in forma pauperis
along with a proposed third amended complaint. If appropriate the undersigned would then
vacate these findings and recommendations.
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