(PC)Miller v. Mule Creek State Prison

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA — 10 — 11 ELIJAH LEE MILLER, No. 2:21-cv-2104 WBS DB P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 MULE CREEK STATE PRISON, et al., 15 Defendants. — 16 — — 17 — 18 Plaintiff, a state prisoner, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 . 19 On April 4, 2022, the court reviewed an affidavit in support of plaintiff’s motion to proceed in 20 forma pauperis and found plaintiff’s prison trust account statement reflected he had $1,755.42 in 21 available funds on November 18, 2021, an amount sufficient to pre-pay the filing fees for this 22 action. (ECF No. 8.) The court determined plaintiff had not made an adequate showing of 23 indigency under 28 U.S.C. § 1915 (a) to support his application to proceed in forma pauperis. See 24 Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995); Alexander v. Carson Adult High Sch., 9 25 F.3d 1448, 1449 (9th Cir. 1993). 26 Pursuant to the court’s April 4, 2022 order, plaintiff was granted twenty (20) days to 27 submit the appropriate filing fee or inform the court why he could no longer pay the fee. Plaintiff 28 was cautioned that failure to comply with the order would result in a recommendation that the 1 | motion to proceed in forma pauperis be denied and the present action be dismissed without 2 || prejudice. 3 Plaintiff has not paid the filing fee or otherwise responded to the court’s order. 4 | Accordingly, for the foregoing reasons, IT IS RECOMMENDED: 5 1. Plaintiff's application to proceed in forma pauperis (ECF No. 2) be denied and this 6 || action be dismissed without prejudice to refiling upon pre-payment of the filing fee or an 7 || adequate showing of indigency under 28 U.S.C. § 1915 (a). 8 2. The Clerk of the Court be directed to close this case. 9 These findings and recommendations are submitted to the United States District Judge 10 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within twenty (20) days 11 | after being served with these findings and recommendations, plaintiff may file written objections 12 || with the court and serve a copy on all parties. Such a document should be captioned 13 || “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 14 | failure to file objections within the specified time may waive the right to appeal the District 15 || Court’s order. Martinez v. Yst, 951 F.2d 1153 (9th Cir. 1991). 16 || DATED: May 4, 2022 18 | DLB7 19 mill2001 .ifp. fr BORAH BARNES UNITED STATES MAGISTRATE JUDGE — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —