(PC) Harper v. California Department of Corrections et al, No. 2:2009cv01969 - Document 34 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 02/23/11 recommending that this action be dismissed without prejudice. Referred to Judge Garland E. Burrell. Objections due within 21 days. (Plummer, M)
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(PC) Harper v. California Department of Corrections et al Doc. 34 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 DANIEL HARPER, 11 12 13 Plaintiff, No. 2:09-cv-01969 GEB KJN P vs. CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., 14 FINDINGS AND RECOMMENDATIONS Defendants. 15 16 17 / Plaintiff is a state prisoner proceeding in this civil rights action pursuant to 42 U.S.C. § 1983. For the following reasons, this court recommends that this action be dismissed. 18 On September 15, 2010, the district judge adopted the findings and 19 recommendations filed by the undersigned on June 8, 2010, and concluded, pursuant to the “three 20 strikes” rule of the Prison Litigation Reform Act, 28 U.S.C. § 1915(g), that plaintiff should be 21 barred from filing further civil rights complaints in this court without prepayment of the full 22 filing fee. (Dkt. No. 28.) The court therefore denied plaintiff’s application to proceed in forma 23 pauperis, but granted plaintiff leave to file, within thirty days, a Second Amended Complaint 24 together with payment of the full filing fee. Plaintiff was clearly informed that “[f]ailure . . . to 25 timely file a Second Amended Complaint and pay the full filing fee shall result in dismissal of 26 this action.” (Id. at 2.) Dockets.Justia.com 1 Plaintiff thereafter filed an interlocutory appeal, which was dismissed on January 2 4, 2011, for failure to perfect the appeal; the order was effective immediately (“[t]his order 3 served on the district court shall constitute the mandate of this court”). (Dkt. No. 33.) 4 Plaintiff has made no other filings in this court or on appeal. 5 More than thirty days have passed since the Court of Appeals’ decision, and hence 6 the operative period for plaintiff’s compliance with this court’s September 15, 2010 order has 7 expired. Because plaintiff has not paid the filing fee to pursue this action, as required by 28 8 U.S.C. § 1915(g), this action should be dismissed. 9 10 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. 11 These findings and recommendations are submitted to the United States District 12 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 21 days 13 after being served with these findings and recommendations, plaintiff may file written objections 14 with the court. The document should be captioned “Objections to Magistrate Judge’s Findings 15 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 16 time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 17 (9th Cir. 1991). 18 DATED: February 23, 2011 19 20 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 21 22 harp1969.f&r.dsm 23 24 25 26 2
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