Maldonado v. Lizarraga et al

Filing 14

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 07/14/17 recommending that this action be dismissed without prejudice for failure to prosecute. Referred to Judge Garland E. Burrell. Objections due within 21 days. (Plummer, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BILLY RAY SHANEE MALDONADO, 12 13 14 15 No. 2:15-cv-02682 GEB AC P Plaintiff, v. FINDINGS AND RECOMMENDATIONS JOE A. LIZARRAGA, et. al., Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. He sought leave to proceed in forma pauperis. ECF No. 10. On May 11, 2017, 19 the court determined that plaintiff was a “three-striker” within the meaning of 28 U.S.C. § 20 1915(g). ECF No. 11 at 1-2. That is, he had filed at least three lawsuits that had been dismissed 21 as frivolous, malicious, or which failed to state a claim on which relief could be granted. Id. at 2. 22 The court ordered plaintiff to tender the filing fee within twenty-one days of that order and 23 warned him that failure to do so would result in a recommendation that this action be dismissed. 24 Id. at 3; see Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for 25 failure to comply with a court order). On May 26, 2017, plaintiff asked for an extension of time 26 to tender the filing fee (ECF No. 12) and the court granted it, moving the due date for the filing 27 fee to June 26, 2017. ECF No. 13. That date has now passed and plaintiff has not tendered the 28 filing fee, nor has he sought a further extension of time. 1 2 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice for failure to prosecute. 3 These findings and recommendations are submitted to the United States District Judge 4 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 21 days after 5 being served with these findings and recommendations, plaintiff may file written objections with 6 the court. Such document should be captioned “Objections to Magistrate Judge’s Findings and 7 Recommendations.” Local Rule 304(d). Plaintiff is advised that failure to file objections within 8 the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 9 F.2d 1153 (9th Cir. 1991). 10 DATED: July 14, 2017 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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