(PC) Overton v. Warden ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL L. OVERTON, No. 2:23-cv-0465 AC P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 WARDEN CHCF, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 19 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On April 10, 2023, plaintiff was ordered to file a completed in forma pauperis affidavit, 21 and he was given thirty days to do so. ECF No. 5. At that time, plaintiff was cautioned that 22 failure comply with the court’s order would result in a recommendation that this action be 23 dismissed. Id. at 1. More than thirty days have passed, and plaintiff has neither filed a completed 24 in forma pauperis action, nor has he responded to the court’s order in any way. Plaintiff has, 25 however, filed a request for an evidentiary hearing. ECF No. 6. 26 Because in forma pauperis status has not been granted to plaintiff, nor has plaintiff paid 27 the filing fee, plaintiff’s request for an evidentiary hearing will be disregarded as premature. In 28 //// 1 | addition, the undersigned will recommend that this matter be dismissed for failure to file an 2 || application to proceed in forma pauperis or, in the alternative, to pay the filing fee. 3 In accordance with the above, IT IS HEREBY ORDERED that: 4 1. The Clerk of Court shall randomly assign a District Judge to this case, and 5 2. Plaintiff's request for an evidentiary hearing (ECF No. 6) is DISREGARDED as 6 || prematurely filed. 7 IT IS FURTHER RECOMMENDED that this action be DISMISSED without prejudice 8 | for failure to file an application to proceed in forma pauperis, or, in the alternative, to pay the 9 | filing fee. 10 These findings and recommendations are submitted to the United States District Judge 11 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 12 | after being served with these findings and recommendations, plaintiff may file written objections 13 || with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 14 | and Recommendations.” Plaintiff is advised that failure to file objections within the specified 15 || time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 16 | (9th Cir. 1991). 17 || DATED: May 23, 2023 ' ~ 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28