Partida v. Liu et al

Filing 8

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 5/15/2017 RECOMMENDING this action be dismissed without prejudice. Referred to Judge William B. Shubb. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GUSTAVO C. PARTIDA,

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Plaintiff,

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No. 2:17-cv-0694 WBS KJN P
FINDINGS AND RECOMMENDATIONS

v.
ALEXANDER LIU, et al.,
Defendants.

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Plaintiff is a state prisoner, proceeding without counsel. By an order filed April 12, 2017,

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plaintiff was ordered to file a completed in forma pauperis affidavit, and was cautioned that

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failure to do so would result in a recommendation that this action be dismissed. The thirty day

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period has now expired, and plaintiff has not filed the required documents.

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On May 3, 2017, plaintiff filed an amended complaint, as well as a list of dates in which

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he states he sent forms to the trust withdrawal department, all of which pre-date the filing of this

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action. (ECF No. 7.) In the April 12, 2017 order, the court explained that because plaintiff is in

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the custody of the California Department of Corrections and Rehabilitation (“CDCR”), the CDCR

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will provide plaintiff’s certified financial information directly to the court, but that plaintiff must

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provide a signed and dated application to proceed in forma pauperis. (ECF No. 3 at 2.) In other

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words, plaintiff is not required to provide a certified trust account statement because prison

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officials submit it directly to the court. However, if plaintiff seeks leave to proceed in forma
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pauperis, he must sign, date, and return the application to proceed in forma pauperis. Despite this

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explanation in the April 12, 2017 order, plaintiff has failed to provide an application to proceed in

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forma pauperis or pay the court’s filing fee. This action cannot proceed unless plaintiff pays the

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filing fee or files an application to proceed in forma pauperis.

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In accordance with the above, 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, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be filed and served within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: May 15, 2017

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