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Mercer v. Matevousian

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
Jun 27, 2018
Case No. 1:18-cv-00265-DAD-BAM (PC) (E.D. Cal. Jun. 27, 2018)

Opinion

Case No. 1:18-cv-00265-DAD-BAM (PC)

06-27-2018

WILLIAM MERCER, Plaintiff, v. MATEVOUSIAN, et al., Defendants.


ORDER VACATING FINDINGS AND RECOMMENDATIONS
(ECF No. 5) ORDER DIRECTING CLERK OF COURT TO RE-SERVE PLAINTIFF WITH ORDER RE CONSENT OR REQUEST FOR REASSIGNMENT AND APPLICATION TO PROCEED IN FORMA PAUPERIS

THIRTY (30) DAY DEADLINE

Plaintiff William Mercer ("Plaintiff") is a federal prisoner proceeding pro se in this civil rights action pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff initiated this action on February 23, 2018, together with a motion to proceed in forma pauperis. (ECF Nos. 1, 2.)

On February 26, 2018, the Court issued an order requiring Plaintiff to consent to or decline United States Magistrate Judge jurisdiction within thirty days. (ECF No. 3.) Thereafter, on February 27, 2018, the Court denied Plaintiff's motion to proceed in forma pauperis, without prejudice, due to Plaintiff's failure to include a certified copy of his trust account statement for the prior six months. The Court ordered Plaintiff to submit a completed application to proceed in forma pauperis within forty-five (45) days. (ECF No. 4.)

On March 20, 2018, the Court's February 26, 2018 and February 27, 2018 orders were returned as "Undeliverable, No Longer at this Facility." Plaintiff's change of address was therefore due no later than May 29, 2018.

On June 7, 2018, after receiving no communication from Plaintiff, the Court issued findings and recommendations regarding dismissal of this action, without prejudice, for Plaintiff's failure to prosecute this action. (ECF No. 5.) Those findings and recommendations were served on Plaintiff and contained notice that any objections thereto were to be filed within fourteen (14) days after service. (Id. at 3.)

On June 25, 2018, Plaintiff filed objections to the findings and recommendations. (ECF No. 6.) Plaintiff states that after he filed this action, but before receiving a response from the Court, he was transferred to a new institution. After his transfer, Plaintiff wrote to inform the Court of his transfer to USP Victorville, but believes that he mailed his letter to the wrong address for the Court. Plaintiff states that his application to proceed in forma pauperis may have been filed with the wrong court, and requests that the Court allow his case to proceed on the merits. (Id.)

As it appears that Plaintiff attempted to communicate his change of address to this Court as soon as he was able, and that Plaintiff did not receive many of the Court's prior orders in this action, the Court finds good cause to vacate the pending findings and recommendations. The Court will permit Plaintiff a further opportunity to respond to the Court's orders. Plaintiff should not be penalized for failure to obey court orders that he did not receive. The Court notes that the Clerk of the Court was unable to locate a pending application to proceed in forma pauperis submitted by Plaintiff, and he will be required to submit a new application.

Accordingly, IT IS HEREBY ORDERED as follows:

1. The findings and recommendations issued on June 7, 2018, (ECF No. 5), are VACATED;

2. The Clerk of the Court is directed to re-serve Plaintiff with a new order re: consent or request for reassignment and a new application to proceed in forma pauperis;
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3. Within thirty (30) days from the date of service of this order, Plaintiff shall:

a. Complete and return the attached order re: consent or request for reassignment to the Court;

b. File the attached application to proceed in forma pauperis, completed and signed, or in the alternative, pay the $400.00 initial filing fee for this action; and

4. If Plaintiff fails to comply with this order , this action will be dismissed, without prejudice, for failure to obey court orders and failure to prosecute .
IT IS SO ORDERED.

Dated: June 27 , 2018

/s/ Barbara A . McAuliffe

UNITED STATES MAGISTRATE JUDGE


Summaries of

Mercer v. Matevousian

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
Jun 27, 2018
Case No. 1:18-cv-00265-DAD-BAM (PC) (E.D. Cal. Jun. 27, 2018)
Case details for

Mercer v. Matevousian

Case Details

Full title:WILLIAM MERCER, Plaintiff, v. MATEVOUSIAN, et al., Defendants.

Court:UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Date published: Jun 27, 2018

Citations

Case No. 1:18-cv-00265-DAD-BAM (PC) (E.D. Cal. Jun. 27, 2018)