(PC) Rogers v. California State Prison Corcoran ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN ROGERS, No. 1:23-cv-01026 GSA (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO APPOINT DISTRICT JUDGE TO MATTER 13 v. FINDINGS AND RECOMMENDATIONS 14 CALIFORNIA STATE PRISON ORDER RECOMMENDING DENIAL OF IN CORCORAN, et al., FORMA PAUPERIS APPLICATION AND 15 DISMISSAL OF MATTER WITHOUT Defendants. PREJUDICE 16 (ECF No. 2) 17 PLAINTIFF’S OBJECTIONS TO FINDINGS 18 AND RECOMMENDATIONS DUE DECEMBER 18, 2023 19 20 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and 21 has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. ECF No. 1, 2. 22 The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) 23 and Local Rule 302. 24 For the reasons stated below, the undersigned will recommend that Plaintiff’s application 25 to proceed in forma pauperis be denied. It will also be recommended that this matter be 26 dismissed without prejudice for failure to obey a court order. 27 28 1 I. RELEVANT FACTS 2 On July 10, 2023, Plaintiff’s complaint along with his application to proceed in forma 3 pauperis were docketed. ECF Nos. 1, 2). Shortly thereafter the Court reviewed Plaintiff’s in 4 forma pauperis application and found that it had not been submitted on the correct form. ECF 5 No. 4. As a result, Plaintiff was ordered to submit a second in forma pauperis application or, in 6 the alternative, to pay the filing fee. ECF No. 4 at 1. Plaintiff was given forty-five days within 7 which to do so. Id. At that time, Plaintiff was also cautioned that failure to comply with the 8 Court’s order would result in a dismissal of this matter. Id. 9 On July 25, 2023, the Court’s order was returned to it as “Undeliverable, Out to Court.” 10 To date, Plaintiff has not filed a new application to proceed in forma pauperis, nor has he 11 responded to the Court’s order. In addition, Plaintiff has failed to file a change of address form 12 with the Court. 13 II. DISCUSSION 14 In order to commence an action, a litigant must file a complaint as required by Rule 3 of 15 the Federal Rules of Civil Procedure, and he must either pay the appropriate filing fee or file an 16 application requesting leave to proceed in forma pauperis. See Fed. R. Civ. P. 3; 28 U.S.C. §§ 17 1914(a), 1915(a), respectively. The Court will not issue orders granting or denying any relief 18 until an action has been properly commenced. 19 Although it appears from the file that Plaintiff’s copy of the order directing him to file an 20 application to proceed in forma pauperis was returned, Plaintiff was properly served. It is a 21 plaintiff’s responsibility to keep a court apprised of his current address at all times. Pursuant to 22 Local Rule 182(f), service of documents at the record address of the party is fully effective. 23 Because Plaintiff has neither filed a proper application to proceed in forma pauperis, nor 24 paid the filing fee within the time allotted, this matter cannot be commenced. The fact that 25 Plaintiff may not have received the Court’s order because he did not provide it with a current 26 mailing address is irrelevant. Therefore, it will be recommended that Plaintiff’s improper 27 application to proceed in forma pauperis be denied and that this case be dismissed without 28 prejudice for failure to obey a court order. See Local Rule 110. 1 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court shall randomly assign a 2 District Judge to this action. 3 IT IS FURTHER RECOMMENDED that: 4 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) be DENIED, and 5 2. This action be DISMISSED without prejudice for failure to obey a court order. See 6 Local Rule 110. 7 Plaintiff’s objections to these findings and recommendations shall be filed by December 8 18, 2023. 9 These findings and recommendations will be submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 11 after being served with these findings and recommendations, Plaintiff may file written objections 12 with the Court. The document should be captioned “Objections to Magistrate Judge's Findings 13 and Recommendations.” Failure to file objections within the specified time may result in a 14 waiver of the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153, 1157 15 (9th Cir. 1991). 16 17 IT IS SO ORDERED. 18 19 Dated: December 4, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28