Opinion
3:21-cv-05801-RSM-BAT
12-03-2021
WILLIAM SCOTT SMITH, Petitioner, v. STEVEN SINCLAIR, Respondent.
REPORT AND RECOMMENDATION
BRIAN A. TSUCHIDA, United States Magistrate Judge.
On October 28, 2021, Petitioner, a detainee at the Monroe Correctional Complex-Twin Rivers, submitted for filing a pleading entitled memorandum in support of § 2254. Dkt. 1 Because Petitioner did not pay the filing fee or submit an in forma pauperis (IFP) application, the Clerk sent Petitioner a notice to either pay the filing fee or submit an IFP application no later than December 1, 2021. The Clerk also advised Petitioner the failure to pay the filing fee or apply to proceed IFP may result in dismissal of the case.
Regarding the filing fee, Petitioner filed a pleading entitled memorandum in support of § 2254 relief. However, the pleading does not challenge Petitioner's criminal judgment and sentence. Rather Petitioner challenges deductions from his prison trust account that he contends violates a contract between Washington and Oregon States and which also constitutes an unlawful taking. Because Petitioner alleges breach of contract and a violation of his Federal Constitutional rights, this action, if pursued, would fall under 42 U.S.C § 1983. If Petitioner intends to pursue the action, the filing fee for matters brought under § 1983 is $350.00.
As of the date of this recommendation, the Court has received nothing from Petitioner. The Court accordingly recommends the matter be dismissed without prejudice under 28 U.S.C. 1914. In the event, Petitioner either pays the proper filing fee or applies to proceed IFP during the time in which he may object to this report and recommendation, the Court recommends the District Judge strike this recommendation and refer the case back to the assigned Magistrate Judge for further review.
OBJECTIONS AND APPEAL
This Report and Recommendation is not an appealable order. Thus, Petitioner should not file a notice of appeal in the Court of Appeals for the Ninth Circuit until the assigned District Judge enters a judgment in the case.
Any objection to this report and recommendation must be filed no later than December 17, 2021. The Clerk should note the matter for December 17, 2021, as ready for the District Judge's consideration. The failure to timely object may affect the right to appeal.