(PC) Simmons v. Newsom ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MELVIN JOSEPH SIMMONS, No. 2:21-cv-1453 DB P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 GAVIN NEWSOM, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 18 U.S.C. § 1983. This action was transferred in from the United States District Court for the 19 Central District of California on August 12, 2021. (ECF No. 3.) 20 By orders dated August 18, 2021 and October 14, 2021 plaintiff was ordered to either pay 21 the filing fee or submit a properly completed application to proceed in forma pauperis within 22 thirty days. (ECF Nos. 6, 10.) Plaintiff was warned that failure to comply with the court’s order 23 would result in a recommendation that this action be dismissed. (Id.) Thereafter, plaintiff filed a 24 document captioned “Application to proceed as owner pro hac vice on judicial tender by USA, 25 Inc. flag vessel owner illegally restrained in state prison.” (ECF No. 12.) The court advised 26 plaintiff that this filing was not sufficient because he had not provided a certified copy of his 27 prison trust account as required. (ECF No. 13.) Plaintiff was granted an additional thirty days 28 leave to either submit the filing fee or a properly completed in forma pauperis application. (Id.) 1 In response, plaintiff filed “Objections.” (ECF No. 14.) Therein plaintiff argues that the 2 | undersigned’s order in this action constitute extortion. (Id.) It is clear that plaintiff seeks to avoid 3 || completing the in forma pauperis application. However, in order to proceed in court without 4 || prepayment of the filing fee, a plaintiff must submit an affidavit demonstrating that he “is unable 5 || to pay such fees or give security therefor.” 28 U.S.C. § 1915(a)(1). 6 Plaintiff was previously advised that failure to pay the filing fee or submit a properly 7 || completed in forma pauperis application would result in a recommendation that this action be 8 || dismissed for failure to prosecute and failure to comply with court orders. (ECF Nos. 6, 10, 13.) 9 | Because plaintiff has failed to pay the filing fee or submit an in forma pauperis application, the 10 || undersigned will recommend that this action be dismissed for failure to prosecute and failure to 11 || comply with court orders. 12 For the reasons set forth above, the Clerk of the Court is ORDERED to randomly assign 13 | this action to a District Judge. 14 IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. See 15 || Local Rule 110; Fed. R. Civ. P. 41(b). 16 These findings and recommendations are submitted to the United States District Judge 17 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty days 18 | after being served with these findings and recommendations, plaintiff may file written objections 19 || with the court and serve a copy on all parties. Such a document should be captioned “Objections 20 || to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 21 || objections within the specified time may waive the right to appeal the District Court’s order. 22 | Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 23 || Dated: February 8, 2022 25 %6 .B ORAH BARNES UNITED STATES MAGISTRATE JUDGE 27 | pBa2 DB/DB Prisoner Inbox/Civil Rights/R/simm1453.fee fr 28