Brown v. Baughman

Filing 10

ORDER DISMISSING CASE without prejudice. DENYING as insufficient Petitioner's IFP Applications 2 and 7 and DENYING without prejudice 9 Motion for Appointment of Counsel. Signed by Chief Magistrate Judge Joseph C. Spero on 5/2/17. (klhS, COURT STAFF) (Filed on 5/2/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 KENNY M. BROWN, 7 Petitioner, Case No. 17-cv-01409-JCS (PR) 8 v. ORDER OF DISMISSAL 9 DAVID BAUGHMAN, 10 Respondent. United States District Court Northern District of California 11 Dkt. Nos. 2, 7 and 9 12 Petitioner has not complied with the Court’s order to (1) perfect his application to 13 14 proceed in forma pauperis (“IFP”), or (2) pay the full filing fee of $5.00. His IFP 15 application is incomplete because it does not contain a properly completed and signed 16 Certificate of Funds. The one submitted is blank. Accordingly, the action is DISMISSED 17 without prejudice for failing to respond to the Court’s order, and for failure to prosecute, 18 see Fed. R. Civ. P. 41(b).1 Because this dismissal is without prejudice, petitioner may move to reopen the 19 20 action. Any such motion must contain a properly completed and signed Certificate of 21 Funds, or full payment for the filing fee of $5.00. 22 Petitioner’s IFP application (Dkt. Nos. 2 and 7) is DENIED as insufficient. 23 His motion for the appointment of counsel (Dkt. No. 9) is DENIED without 24 prejudice. Petitioner may file a new motion when he files his IFP paperwork. 25 26 27 28 1 Petitioner consented to magistrate judge jurisdiction. (Dkt. No. 5.) The magistrate judge, then, has jurisdiction to decide this motion, even though respondent has not been served or consented to magistrate judge jurisdiction. See Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995) 1 The Clerk shall terminate Dkt. Nos. 2, 7 and 9, enter judgment in favor of 2 respondent, and close the file. 3 IT IS SO ORDERED. 4 Dated: May 2, 2017 _________________________ JOSEPH C. SPERO Chief Magistrate Judge 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KENNY M. BROWN, Case No. 17-cv-01409-JCS Plaintiff, 8 v. CERTIFICATE OF SERVICE 9 10 DAVID BAUGHMAN, Defendant. United States District Court Northern District of California 11 12 13 14 15 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on May 2, 2017, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 16 17 18 Kenny M. Brown ID: ID: V22473 CMC-East Facility (Cell # 5134) P.O. Box 8101 San Luis Obispo, CA 93409-8101 19 20 21 Dated: May 2, 2017 22 23 Susan Y. Soong Clerk, United States District Court 24 25 26 By:________________________ Karen Hom, Deputy Clerk to the Honorable JOSEPH C. SPERO 27 28 3

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