Whitaker v. Crane, et al.

Filing 32

ORDER NOT ADOPTING 27 FINDINGS and RECOMMENDATIONS signed by Judge Kimberly J. Mueller on 3/18/2015. This matter is REFERRED BACK to Magistrate Judge Dale A. Drozd for further proceedings. (Marciel, M)

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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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Plaintiff,

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No. 2:13-cv-00505 KJM DAD P

v.

ORDER

CRANE, et al.,

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Defendant.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief

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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided

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by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On January 20, 2015, the magistrate judge filed findings and recommendations, which

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were served on plaintiff and which contained notice to plaintiff that any objections to the findings

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and recommendations were to be filed within fourteen days. Plaintiff has filed objections to the

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findings and recommendations.1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C)

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and Local Rule 304, this court has conducted a de novo review of this case.

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Plaintiff filed objections to the findings and recommendations on January 29, 2015 and on
February 20, 2015, ECF Nos. 28 and 31. Plaintiff’s January 29, 2015 objections are accompanied
by a copy of his inmate trust account statement not certified by prison officials, ECF No. 29.
Plaintiff’s February 20, 2015 objections are accompanied by a complete in forma pauperis
application.
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The magistrate judge recommends dismissal of this action due to plaintiff’s failure to file

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a complete application to proceed in formal pauperis. The magistrate judge also finds that

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plaintiff’s third amended complaint fails to state a claim against any named defendant. It appears,

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however, that the recommendation to dismiss this action without prejudice is grounded in the fact

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that plaintiff had not, at the time of the findings and recommendations, complied with orders to

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file a complete application to proceed in forma pauperis and not on the basis of identified

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deficiencies in the third amended complaint. Since plaintiff has now filed a complete application

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to proceed in forma pauperis the court will not adopt the findings and recommendations and will,

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instead, refer the matter back to the magistrate judge for further proceedings.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed January 20, 2015 (ECF No. 27) are not

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adopted; and
2. This matter is referred back to the assigned magistrate judge for further proceedings.
DATED: March 18, 2015.

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UNITED STATES DISTRICT JUDGE
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