Opinion
3:23-cv-05585-BHS-GJL
10-13-2023
MELVIN MARCUS JOHNSON, JR., Petitioner, v. JASON BENNETT, Respondent.
Noting Dated: October 27, 2023
REPORT AND RECOMMENDATION
Grady J. Leupold, United States Magistrate Judge
The District Court has referred this action filed under 28 U.S.C. § 2254 to United States Magistrate Judge Grady J. Leupold. Petitioner Melvin Marcus Johnson, Jr., proceeding pro se, initiated this action on June 29, 2023. See Dkt. 1. Petitioner did not pay the $5.00 filing fee or submit an Application to Proceed In Forma Pauperis (“IFP”). Id. The Clerk notified Petitioner of this deficiency and directed Petitioner either to pay the filing fee or to submit an IFP Application on or before July 31, 2023. Dkt. 2. The Clerk enclosed an IFP form for Petitioner's convenience. Id. In addition, the Clerk warned that if Petitioner failed to provide the requested documents or pay the filing fee by July 31, 2023, this action may be subject to dismissal. Id.
Petitioner did not respond to the Clerk's letter with a completed IFP Application or pay the filing fee. As a result, on August 7, 2023, the Court issued an Order directing Petitioner to provide a completed IFP form (with required accompanying documentation), or to pay the filing fee. Dkt. 4. The Court warned Petitioner that failure to respond to the Court's Order with a completed IFP form or pay the filing fee by September 5, 2023, would result in the Court recommending dismissal of this action. Id.
On August 7, 2023, the mail addressed to Petitioner was returned as Undeliverable. See Dkt. 5. Officials at Stafford Creek Corrections Center (“SCCC”), Petitioner's former place of incarceration, informed the Clerk that Petitioner was transferred to Washington State Penitentiary-Main (“WSP”). See id. As a result, the Clerk updated the docket with Petitioner's new address and regenerated the Order for electronic delivery to Petitioner at WSC. See id.
To date, Petitioner has failed to comply with the Court's August 7, 2023, Order. He has not filed a completed IFP Application or paid the filing fee. Therefore, the Court recommends this case be DISMISSED without prejudice for failure to prosecute.
Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), the parties shall have fourteen (14) days from service of this report to file written objections. See also Fed.R.Civ.P. 6. Failure to file objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 142 (1985); Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations omitted).
Accommodating the time limit imposed by Rule 72(b), the Clerk is directed to set the matter for consideration on October 27, 2023, as noted in the caption.