Dixon v. Elk Grove County et al.

Filing 14

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 09/07/17 ORDERING the Clerk of the Court assign a District Judge to this case. U.S. District Judge John A. Mendez randomly assigned to this case. Also, RECOMMENDING that this action be dismissed without prejudice. Referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 MITCHELL DIXON, Jr., 11 12 13 14 No. 2:16-cv-2980 DB P Plaintiff, v. ORDER AND FINDINGS AND RECOMMENDATIONS ELK GROVE COUNTY, et al., Defendants. 15 16 Plaintiff is a former prisoner proceeding pro se with a civil rights action under 42 U.S.C. § 17 1983. Plaintiff filed his original complaint in December 2016. (ECF No. 1.) At that time, 18 plaintiff was incarcerated at the Sacramento County Main Jail. Plaintiff also filed an incomplete 19 motion to proceed in forma pauperis. 20 On January 4, 2017, the court ordered plaintiff to submit a complete affidavit in support of 21 his motion to proceed in forma pauperis and a certified copy of his trust account statement from 22 the jail. (ECF No. 4.) Plaintiff was warned that his failure to comply with the court’s order 23 would result in a recommendation that this action be dismissed. On January 18, 2017, plaintiff’s 24 copy of this order was returned to the court as undeliverable because plaintiff was no longer in 25 custody at the Sacramento County Main Jail. 26 On March 7, 2017, plaintiff filed a document which the court construed as a first amended 27 complaint. Plaintiff’s address on that filing showed that he was at that time incarcerated at the 28 Fresno County Jail. (ECF No. 5.) 1 1 The January 4 order was re-served on plaintiff at this new address. However, shortly 2 thereafter, court staff noted that plaintiff had filed a change of address in another case in this 3 court. The new address indicated that plaintiff might no longer be in custody. On April 3, 2017, 4 the January 4 order was re-served, again, on plaintiff at this new address in Elk Grove. 5 In April, June, and July, the court received several filings from plaintiff. Some of these 6 appear to be argument in support of his claims and, in one letter, plaintiff requested unspecified 7 forms. Information gleaned from the June 22 filing indicated that, at that time, plaintiff remained 8 incarcerated at the Fresno County Jail. (ECF No. 8.) 9 In an order filed July 24, the court gave plaintiff one final opportunity to seek to proceed 10 in forma pauperis in this action or pay the filing fee. (ECF No. 13.) Plaintiff was warned that his 11 failure to do so would result in a recommendation that this case be dismissed. Plaintiff was also 12 warned that if he wishes to proceed with a suit in this court, he must keep the court apprised of his 13 current address. The court served plaintiff copies of this July 24 order at both the Fresno County 14 Jail and at the Elk Grove address. 15 On August 11, the copy of the July 24 order served on plaintiff at the Fresno County Jail 16 was returned as undeliverable, indicating that plaintiff is no longer in custody at that jail. The 17 copy of the order mailed to the Elk Grove address has not been returned. 18 19 20 21 22 23 Plaintiff has been provided numerous opportunities to pay the filing fee or a motion to proceed in forma pauperis in this action and has failed to do so. Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court assign a district judge to this case; and IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. See E.D. Cal. R. 110; Fed. R. Civ. P. 41(b). 24 These findings and recommendations are submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 26 after being served with these findings and recommendations, plaintiff may file written objections 27 with the court. The document should be captioned “Objections to Magistrate Judge’s Findings 28 and Recommendations.” Any response to the objections shall be filed and served within fourteen 2 1 days after service of the objections. Plaintiff is advised that failure to file objections within the 2 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 3 F.2d 1153 (9th Cir. 1991). 4 Dated: September 7, 2017 5 6 7 8 9 DLB:9 DLB1/prisoner-civil rights/dixo2980.fr 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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