(PS) Bershell v. State of California et al, No. 2:2019cv01730 - Document 5 (E.D. Cal. 2020)

Court Description: ORDER signed by District Judge Troy L. Nunley on 12/17/2020 ADOPTING 4 Findings and Recommendations in full, DISMISSING this action without prejudice, and DENYING 2 Motion to Proceed IFP. CASE CLOSED. (Huang, H)

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(PS) Bershell v. State of California et al Doc. 5 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LOUIS E. BERSHELL, JR, 12 Plaintiff, 13 14 15 No. 2:19-cv-01730-TLN-DB ORDER v. STATE OF CALIFORNIA, et al., Defendants, 16 17 18 19 20 Plaintiff Louis Bershell (“Plaintiff”) is proceeding in this action pro se. This matter was referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). On October 2, 2020, the magistrate judge filed findings and recommendations herein 21 which were served on Plaintiff and which contained notice to Plaintiff that any objections to the 22 findings and recommendations were to be filed within thirty (30) days after service of the 23 Findings and Recommendations. (ECF No. 4.) The thirty-day period has expired, and Plaintiff 24 has not filed any objections to the findings and recommendations. 25 Although it appears from the docket that Plaintiff’s copy of the Findings and 26 Recommendations were returned as undeliverable, Plaintiff was properly served. It is Plaintiff’s 27 responsibility to keep the court apprised of his current address at all times. Pursuant to Local 28 Rule 182(f), service of documents at the record address of the party is fully effective. 1 Dockets.Justia.com 1 Accordingly, the Court presumes that any findings of fact are correct. See Orand v. 2 United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are 3 reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 4 1983); see also 28 U.S.C. § 636(b)(1). Having reviewed the file under the applicable legal 5 standards, the Court finds the Findings and Recommendations to be supported by the record and 6 by the magistrate judge’s analysis. The Court notes Plaintiff’s Motion to Proceed In Forma Pauperis also appears to be 7 8 pending. (ECF No. 2.) In the Findings and Recommendations, the magistrate judge determined 9 Plaintiff qualified financially for in forma pauperis status but additionally noted that “[i]t is the 10 duty of the District Court to examine any application for leave to proceed in forma pauperis to 11 determine whether the proposed proceedings has merit and if it appears that the proceeding is 12 without merit, the court is bound to deny a motion seeking leave to proceed in forma pauperis.” 13 (Id. (citing Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965)).) In light of this legal authority 14 and the Findings and Recommendations’ dismissal of Plaintiff’s original Complaint with leave to 15 amend, it appears the magistrate judge deferred issuing a ruling granting Plaintiff’s motion until 16 after the after filing of an amended complaint. (See id.) Because Plaintiff has failed to file an 17 amended complaint, however, the Court finds denial of Plaintiff’s motion is now appropriate. For 18 these reasons, Plaintiff’s Motion to Proceed In Forma Pauperis is hereby DENIED. (ECF No. 2.) 19 Accordingly, IT IS HEREBY ORDERED that: 20 1. The Findings and Recommendations filed October 2, 2020 (ECF No. 4), are adopted in 21 full; 22 2. This action is DISMISSED without prejudice; 23 3. Plaintiff’s Motion to Proceed In Forma Pauperis (ECF No. 2) is DENIED; and 24 4. The Clerk of the Court is directed to close this case. 25 IT IS SO ORDERED. 26 DATED: December 17, 2020 27 28 2 Troy L. Nunley United States District Judge

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