(PC)Murphy v. Paat et al, No. 1:2010cv01942 - Document 9 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Michael J. Seng on 1/7/2011, recommending that the 1 Prisoner Civil Rights Complaint be dismissed without prejudice for Plaintiffs failure to pay the filing fee or file the proper request to proceed in forma pauperis; Referred to Judge O'Neill. Objections to F&R due by 2/10/2011. (Marrujo, C)

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(PC)Murphy v. Paat et al Doc. 9 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 LUNDY MURPHY, CASE NO. 1:10-cv-1942-LJO-MJS (PC) 9 Plaintiff, FINDINGS AND RECOMMENDATION THAT CASE BE DISMISSED W I T HO UT PREJUDICE FOR FAILURE TO PAY FILING FEE AND/OR APPLY TO PROCEED IN FORMA PAUPERIS Defendants. OBJECTIONS DUE WITHIN THIRTY DAYS 10 v. 11 PAAT, et al., 12 13 / 14 15 Plaintiff Lundy Murphy (“Plaintiff”), a former state prisoner proceeding pro se, 16 initiated this civil rights action pursuant to 42 U.S.C. § 1983 on October 18, 2010. (ECF 17 No. 1.) The Court ordered Plaintiff to either pay the filing fee or complete an application 18 to proceed in forma pauperis (“IFP”). (ECF No. 3.) 19 Because Plaintiff was incarcerated, the Court originally mailed Plaintiff the IFP form 20 used by incarcerated prisoners. On November 1, 2010, Plaintiff filed a change of address 21 indicating that he had been released from prison. (ECF No. 5.) On November 8, 2010, 22 Plaintiff submitted the IFP form intended for incarcerated prisoners. (ECF No. 7.) The 23 Court denied the application because Plaintiff was no longer incarcerated. The Court 24 mailed Plaintiff the non-prisoner IFP form and instructed him to complete and return it by 25 December 22, 2010. (ECF No. 8.) Plaintiff was warned that “[f]ailure to obey this order will 26 result in dismissal of this action.” (Id.) 27 28 To date, the Court has yet to receive Plaintiff’s completed non-prisoner IFP application. Dockets.Justia.com 1 A civil action may not proceed absent the submission of either the filing fee or the 2 grant of in forma pauperis status. 28 U.S.C. §§ 1914, 1915. Because Plaintiff has neither 3 applied to proceed in forma pauperis nor paid the filing fee, dismissal of this action is 4 appropriate. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 5 1226 (9th Cir. 2006); Local Rule 11-110. 6 Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed 7 without prejudice for Plaintiff’s failure to pay the filing fee or file the proper request to 8 proceed in forma pauperis. 9 These Findings and Recommendations are submitted to the United States District 10 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). 11 Within thirty days after being served with these Findings and Recommendations, any party 12 may file written objections with the court and serve a copy on all parties. Such a document 13 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 14 Any reply to the objections shall be served and filed within ten days after service of the 15 objections. The parties are advised that failure to file objections within the specified time 16 may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 17 (9th Cir. 1991). 18 19 20 IT IS SO ORDERED. 21 Dated: ci4d6 January 7, 2011 Michael J. Seng /s/ UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 -2-

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