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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GUSTAVO C. PARTIDA, 12 Plaintiff, 13 14 15 No. 2:17-cv-0694 WBS KJN P FINDINGS AND RECOMMENDATIONS v. ALEXANDER LIU, et al., Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel. By an order filed April 12, 2017, 18 plaintiff was ordered to file a completed in forma pauperis affidavit, and was cautioned that 19 failure to do so would result in a recommendation that this action be dismissed. The thirty day 20 period has now expired, and plaintiff has not filed the required documents. 21 On May 3, 2017, plaintiff filed an amended complaint, as well as a list of dates in which 22 he states he sent forms to the trust withdrawal department, all of which pre-date the filing of this 23 action. (ECF No. 7.) In the April 12, 2017 order, the court explained that because plaintiff is in 24 the custody of the California Department of Corrections and Rehabilitation (“CDCR”), the CDCR 25 will provide plaintiff’s certified financial information directly to the court, but that plaintiff must 26 provide a signed and dated application to proceed in forma pauperis. (ECF No. 3 at 2.) In other 27 words, plaintiff is not required to provide a certified trust account statement because prison 28 officials submit it directly to the court. However, if plaintiff seeks leave to proceed in forma 1 1 pauperis, he must sign, date, and return the application to proceed in forma pauperis. Despite this 2 explanation in the April 12, 2017 order, plaintiff has failed to provide an application to proceed in 3 forma pauperis or pay the court’s filing fee. This action cannot proceed unless plaintiff pays the 4 filing fee or files an application to proceed in forma pauperis. 5 6 In accordance with the above, IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. 7 These findings and recommendations are submitted to the United States District Judge 8 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 9 after being served with these findings and recommendations, any party may file written 10 objections with the court and serve a copy on all parties. Such a document should be captioned 11 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 12 objections shall be filed and served within fourteen days after service of the objections. The 13 parties are advised that failure to file objections within the specified time may waive the right to 14 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 Dated: May 15, 2017 16 17 /part0694.fifp 18 19 20 21 22 23 24 25 26 27 28 2

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