Opinion
C22-5783 BHS
01-04-2023
MARLIN GIOVANNI PICKENS, Plaintiff, v. 24 HOUR FITNESS, Defendants.
REPORT AND RECOMMENDATION
Theresa L. Fricke United States Magistrate Judge
On October 17, 2022, plaintiff filed a Motion for Leave to Proceed In Forma Pauperis (Dkt. 1), with respect to his proposed civil rights complaint (Dkt. 1-1). On November 9, 2022, the Court ordered plaintiff to show cause why the complaint should not be dismissed for failure to state a claim. Dkt. 4.
Given the identified deficiencies in the proposed complaint, the Court did not grant Plaintiff's IFP application. Plaintiff was given until November 25, 2022, to show cause why his complaint should not be dismissed or file an amended complaint. Plaintiff has not responded to the Court's order to show cause. Accordingly, the undersigned recommends that the Court DENY plaintiff's IFP application and dismiss his action without prejudice for failure to prosecute.
A plaintiff is not entitled to submit written objections to the Magistrate Judge's report and recommendation that IFP status should be denied. Minetti v. Port of Seattle, 152 F.3d 1113, 1114 (9th Cir. 1998)(per curiam). Denial of a motion to proceed IFP is an immediately appealable order. Tripati v. Rison, 847 F.2d 548, 548-549 (9th Cir. 1988). Under O'Neal v. Price, 531 F.3d 1146, 1151-1156 (9th Cir. 2008), the complaint should be dismissed without prejudice.