(PC) Miller v. Thomas ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ELIJAH LEE MILLER, No. 2:21-cv-2001 DB P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 J. THOMAS, et al., 15 Defendants. 16 17 18 Plaintiff, a state prisoner, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983. 19 On February 11, 2022, the court reviewed an affidavit in support of plaintiff’s motion to proceed 20 in forma pauperis and found that plaintiff’s prison trust account statement reflected that he had 21 $2,000.60 in available funds as of October 22, 2021, an amount sufficient to pre-pay the filing 22 fees for this action. (ECF No. 5 at 1.) The court determined plaintiff had not made an adequate 23 showing of indigency under 28 U.S.C. § 1915(a) to support his application to proceed in forma 24 pauperis. See Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995); Alexander v. Carson Adult 25 High Sch., 9 F.3d 1448, 1449 (9th Cir. 1993). 26 In the court’s February 11, 2022 order, plaintiff was granted twenty (20) days to submit 27 the appropriate filing fee to the Clerk of the Court. Plaintiff was cautioned that failure to pay the 28 fee would result in a recommendation that the motion to proceed in forma pauperis be denied and 1 | that the present action be dismissed without prejudice. On February 24, 2022, the court re-served 2 | the February 11, 2022 order to plaintiff pursuant to a notice of change of address submitted in 3 || another case. 4 Plaintiff has not paid the filing fee or otherwise responded to the court’s order. The 5 || undersigned will recommend the present action be dismissed without prejudice. 6 For the foregoing reasons, IT IS ORDERED the Clerk of the Court shall assign a district 7 || judge to this case. 8 In addition, IT IS RECOMMENDED: 9 1. Plaintiff's application to proceed in forma pauperis (ECF No. 2) be denied and this 10 | action be dismissed without prejudice to refiling upon pre-payment of the filing fee or an 11 || adequate showing of indigency under 28 U.S.C. § 1915(a). 12 2. The Clerk of the Court be directed to close this case. 13 These findings and recommendations are submitted to the United States District Judge 14 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within twenty (20) days 15 | after being served with these findings and recommendations, plaintiff may file written objections 16 || with the court and serve a copy on all parties. Such a document should be captioned 17 || “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 18 | failure to file objections within the specified time may waive the right to appeal the District 19 | Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 20 | Dated: March 25, 2022 22 3 ‘BORAH BARNES mill2001 .ifp.fr UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28