(PC) Roberts v. Lynch ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID NATHANIEL ROBERTS, No. 2:20-cv-1349 WBS DB P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 LYNCH, 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 Plaintiff claims defendants violated his rights by improperly taking funds from his prison trust 20 account and withholding his legal mail. Plaintiff filed a motion to proceed in forma pauperis, 21 which the court granted. (ECF Nos. 2, 9.) 22 On June 2, 2023, defendants moved to revoke plaintiff’s in forma pauperis status. (ECF 23 No. 37.) By order dated October 4, 2023, the District Court determined that plaintiff accrued 24 three strikes under 28 U.S.C. section 1915(g) prior to filing the instant case and had not shown he 25 was in imminent danger of serious physical injury at the time he filed the complaint.1 (ECF No. 26 1 On August 24, 2023, the undersigned issued findings and recommendations recommending that 27 this case be dismissed for failure to prosecute and failure to comply with court orders, and that the motion to revoke plaintiff’s in forma pauperis status be denied as moot. (ECF No. 40.) In its 28 October 4 order, the District Court acknowledged the undersigned’s recommendations, but opted 1 | 44.) Plaintiff was ordered to pay the filing fee within thirty days and warned that failure to 2 | comply would result in dismissal. (d.) 3 Those thirty days have passed, and plaintiff has not paid the filing fee. Accordingly, the 4 | undersigned will recommend this action be dismissed without prejudice. 5 For the foregoing reasons, IT IS RECOMMENDED that: 6 1. This action be dismissed without prejudice; and 7 2. The Clerk of the Court be directed to close this case. 8 These findings and recommendations are submitted to the United States District Judge 9 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty (20) days 10 | after being served with these findings and recommendations, plaintiff may file written objections 11 | with the court and serve a copy on all parties. Such a document should be captioned 12 | “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 13 | failure to file objections within the specified time may waive the right to appeal the District 14 | Court’s order. Martinez v. Y1st, 951 F.2d 1153 (9th Cir. 1991). 15 | Dated: November 22, 2023 16 17 18 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 19 20 21 DB:15 99 || DB/DB Prisoner Inbox/Civil Rights/S/robe1349.ifp.fr 23 24 25 26 27 28