(PC) Winston v. United States ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LEANTHONY T. WINSTON, No. 1:23-cv-01166 GSA (PC) 12 Plaintiff, 13 v. ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO 14 UNITED STATES OF AMERICA, THIS ACTION 15 Defendant. FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION 16 FOR FAILURE TO OBEY COURT ORDER 17 (ECF No. 3) 18 PLAINTIFF’S OBJECTIONS TO FINDINGS AND RECOMMENDATIONS TO BE FILED 19 BY DECEMBER 12, 2023 20 21 Plaintiff, a federal prisoner proceeding pro se, has filed this civil rights action in August 22 2023, seeking relief under 42 U.S.C. § 1983.1 ECF No. 1. The matter was referred to a United 23 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. For the 24 reasons stated below, the undersigned will recommend that this matter be dismissed for failure to 25 obey a court order. 26 27 1 On August 9, 2023, the complaint was stricken for lack of signature. ECF No. 3 (Court’s order 28 stating same and directing Plaintiff to file amended complaint). 1 I. RELEVANT FACTS 2 On August 4, 2023, Plaintiff’s Complaint was docketed. ECF No. 1. On August 9, 2023, 3 the undersigned struck Plaintiff’s complaint and directed him to file an amended complaint that 4 was signed. ECF No. 3. At that time, he was given until September 15, 2023, to do so. Id. at 2. 5 On August 15, 2023, Plaintiff was also ordered either to submit an application to proceed 6 in forma pauperis or to pay the filing fee in full. ECF No. 4. The date by which Plaintiff was to 7 do so was also September 15, 2023. Id. 8 II. APPLICABLE LAW 9 In order to commence an action, a litigant must file a complaint as required by Rule 3 of 10 the Federal Rules of Civil Procedure, and he must either pay the appropriate filing fee or file an 11 application requesting leave to proceed in forma pauperis. See 28 U.S.C. §§ 1914(a), 1915(a)(1)- 12 (2); Fed. R. Civ. P. 3. The Court will not issue any orders granting or denying relief until an 13 action has been properly commenced. 14 Moreover, it is well established that all documents filed in court by litigants must be 15 signed. See Fed. R. Civ. P. 11(a); Local Rule 131(b). Documents that are not signed must be 16 stricken. Fed. R. Civ. P. 11(a). 17 III. DISCUSSION 18 Although Plaintiff has filed a complaint, it has been stricken because it was not signed. 19 Therefore, currently there is no operative complaint before the Court. In addition, because 20 Plaintiff has failed to file an application to proceed in forma pauperis or to pay the filing fee in 21 full, this also prevents this matter from proceeding any further. 22 Plaintiff has been given adequate time to file a signed amended complaint with the Court 23 as well as to either file an in forma pauperis application or to pay the filing fee in full. However, 24 he has failed to comply with the Court’s orders within the time allotted. Specifically, he has 25 failed to respond to both of the Court’s directives. For these reasons, the undersigned will 26 recommend that this matter dismissed for failure to obey court orders. 27 28 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The Clerk of Court shall randomly assign a District Judge to this action, and 3 2. Plaintiff’s objections to this order, if any, shall be filed by December 12, 2023. 4 IT IS FURTHER RECOMMENDED that this matter be DISMISSED without prejudice 5 for failure to obey court orders. See Fed. R. Civ. P. 41(b); Local Rule 110. 6 These findings and recommendations are submitted to the United States District Judge 7 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 8 after being served with these findings and recommendations, Plaintiff may file written objections 9 with the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 10 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 11 time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 12 (9th Cir. 1991). 13 14 IT IS SO ORDERED. 15 16 Dated: November 28, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28