Opinion
Civil Action No. 4:05-1464.
December 21, 2005
REPORT AND RECOMMENDATION
On June 30, 2005, the above-captioned matter 4:05-CV-1464 was filed in the United States District Court for the Southern District of New York. By order dated June 30, 2005, the action was transferred to the United States District Court for the Middle District of Pennsylvania and was subsequently filed in this district on July 21, 2005. The plaintiff filed this action as a petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2241, and the clerk's office designated it as such. (Doc. No. 1). Plaintiff also submitted an application to proceed in forma pauperis. (Doc. No. 1, p. 4).
A review of the complaint indicates that the plaintiff was not challenging the fact or duration of his confinement, but was actually challenging his transfer from a FCI Raybrook in New York to USP-Lewisburg in Pennsylvania. Objecting to the transfer, the plaintiff alleges:
"Being kidnapped by NY (incredible) kidnapped me from Fed. Corr. Inst. Ray Brook NY in Oct 10 (2000) by false pretext of a [ficticious prosecutor] of me on Incredible (Federal Administrative Offense) . . ."
(Doc. No. 1, p. 2). As such, this action was more properly brought as a civil rights action pursuant to 42 U.S.C. § 1983.
To that end, the court issued an order which directed, inter alia, that the clerk's office serve the plaintiff with the appropriate application to proceed in forma pauperis and authorization form applicable to civil rights actions; the plaintiff was to either return the completed application to proceed in forma pauperis and authorization form or submit the proper filing fee for a civil rights action within twenty (20) days of the date of that order; and, the plaintiff was advised that the failure to either return the application to proceed in forma pauperis and authorization form or submit the proper filing fee within the allotted time would result in a recommendation that the instant action be dismissed. (Doc. No. 6).
Pursuant to the courts order of August 30, 2005 (Doc. No. 6) the plaintiffs application to proceed in forma pauperis, and/or filing fee should have been received on or before September 19, 2005. To date, the plaintiff has failed to submit either the proper application and authorization form, or pay the appropriate filing fee.
In light of the foregoing, IT IS HEREBY RECOMMENDED THAT the instant action be DISMISSED for the plaintiff's failure to comply with this court's August 30, 2005 order, by either submitting the appropriate application to proceed in forma pauperis together with the appropriate authorization form, or paying the applicable filing fee.