(PC) Williams v. California Department of Corrections & Rehabilitation et al, No. 2:2009cv00784 - Document 65 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 5/8/2018 RECOMMENDING this action be dismissed without prejudice. Referred to Judge John A. Mendez. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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(PC) Williams v. California Department of Corrections & Rehabilitation et al Doc. 65 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN WESLEY WILLIAMS, 12 13 14 15 No. 2:09-cv-0784 JAM AC P Plaintiff, v. FINDINGS AND RECOMMENDATIONS CALIFORNIA DEPT. OF CORRECTIONS AND REHABILITATION, et al., 16 Defendants. 17 18 Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 19 § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. 20 § 636(b)(1). 21 On October 23, 2013, the court adopted the undersigned’s findings and recommendations 22 that plaintiff’s in forma pauperis status be revoked on the grounds that he is a three strikes 23 plaintiff under 28 U.S.C. § 1915. See ECF No. 57. As a result, plaintiff was ordered to pay the 24 filing fee prior to proceeding in this matter. See id. at 2. Plaintiff appealed the order in the Ninth 25 Circuit Court of Appeal. ECF Nos. 58, 59. 26 On April 12, 2016, the Ninth Circuit dismissed the appeal without prejudice to 27 reinstatement. See ECF No. 61 at 5. In the order, reinstatement was contingent upon this court 28 denying the parties’ request to vacate the judgment. See id. 1 Dockets.Justia.com 1 On April 27, 2016, the parties filed a motion requesting that the court vacate its order of 2 October 23, 2013, pursuant to Federal Rule of Civil Procedure 60(b). ECF No. 61. In support of 3 the motion, the parties stated that they had reached a settlement that was conditioned upon this 4 court’s vacation of its October 2013 order. Id. at 2-3. However, on May 25, 2017, the parties 5 summarily withdrew the motion to vacate. ECF No. 62. As a result, because the October 2013 6 order directing plaintiff to pay the filing fee had not been overturned or vacated, on September 7 12, 2017, the undersigned ordered plaintiff to pay the filing fee within thirty days and cautioned 8 that not doing so would result in a recommendation that this action be dismissed. See ECF No. 9 63. To date, plaintiff has not responded in any way to the court’s order. 10 11 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. 12 These findings and recommendations are submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 14 after being served with these findings and recommendations, any party may file written 15 objections with the court and serve a copy on all parties. Such a document should be captioned 16 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 17 objections shall be filed and served within fourteen days after service of the objections. The 18 parties are advised that failure to file objections within the specified time may waive the right to 19 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 DATED: May 8, 2018 21 22 23 24 25 26 27 28 2

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