Esmael v. Santa Clara County

Filing 13

ORDER OF DISMISSAL; DENYING LEAVE TO PROCEED IN FORMA PAUPERIS. Signed by Judge Maxine M. Chesney on November 19, 2010. (mmcsec, COURT STAFF) (Filed on 11/19/2010)

Esmael v. Santa Clara County

Doc. 13

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA KEDIR ESSA ESMAEL, Plaintiff, v. SANTA CLARA COUNTY, Defendant. _________________________________ ) ) ) ) ) ) ) ) ) No. C 09-3943 MMC (PR) ORDER OF DISMISSAL; DENYING LEAVE TO PROCEED IN FORMA PAUPERIS (Docket Nos. 2, 7 & 9)

On August 26, 2009, plaintiff, a California prisoner then incarcerated at the Elmwood Men's Facility in Milpitas, California, and proceeding pro se, filed the abovetitled civil rights action pursuant to 42 U.S.C. § 1983. Together with his complaint, plaintiff filed a completed prisoner's in forma pauperis ("IFP") application, indicating therein that he had no funds in his prisoner trust account to pay the filing fee. Thereafter, plaintiff wrote the court that he no longer was incarcerated at the Elmwood Men's Facility and was residing in San Jose. The Court inferred from plaintiff's letter that he no longer was imprisoned. Consequently, the Court directed plaintiff to either pay the requisite filing fee in full, or submit a court-approved non-prisoner's IFP application showing he is unable to pay the fee. (Docket No. 4.) In response, plaintiff wrote the Court explaining that he had not been released from jail and was residing at the San Jose Main Jail. (Docket No. 8.) He also submitted a non-prisoner's IFP application. (Docket No. 7.) Plaintiff next wrote the Court and asked that his case be "transferred" to the

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"Downtown Superior ­ Civil Division, 191 North First Street, San Jose, CA 95113," which plaintiff also identified as the "Santa Clara County Civil Division." (Docket No. 10.) Plaintiff's stated reason for such request was his desire to have the case transferred to the county in which he was residing. The San Jose address provided by plaintiff in his letter is the address of the Santa Clara County Superior Court. Together with his request, plaintiff submitted another copy of the district court's non-prisoner's IFP application. (Docket No. 9.) Most recently, plaintiff wrote the Court that he now is incarcerated at the Eloy Detention Center, in Eloy, Arizona. (Docket No. 11.) By order dated October 19, 2010, the Court denied plaintiff's request to transfer his case to the Santa Clara County Superior Court, and informed plaintiff as follows: If plaintiff wishes to prosecute his claims in state, rather than federal, court, he must voluntarily dismiss the instant action and file a complaint in Superior Court. Accordingly, within twenty days of the date this order is filed, plaintiff shall inform the Court whether he intends to proceed with the instant action in this court. If plaintiff fails to comply with this order, the action will be dismissed without prejudice. The Court will defer ruling on plaintiff's request to proceed IFP until plaintiff informs the Court of his intentions as directed above. (Docket No. 12 at 2:10-17.) More than twenty days have passed from the date the Court's order was filed and plaintiff has not responded to the order. Accordingly, the instant action is hereby DISMISSED without prejudice. Additionally, as plaintiff now is incarcerated in Arizona, his IFP application with trust account information from the Elmwood Men's Facility and his non-prisoner IFP applications no longer are applicable with respect to plaintiff's request to proceed IFP. Accordingly, leave to proceed IFP is hereby DENIED, and no fee is due. This order terminates Docket Nos. 2, 7 and 9. The Clerk shall close the file. IT IS SO ORDERED. DATED: November 19, 2010 MAXINE M. CHESNEY United States District Judge
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