Opinion
No. CIV S-10-3469 KJM CKD P
04-03-2012
JIMMIE STEPHEN, Plaintiff, v. ROBERT DOYLE, et al., Defendants.
ORDER AND
FINDINGS & RECOMMENDATIONS
By order filed February 17, 2012, plaintiff was ordered to show cause, within thirty days, why his action should not be dismissed for failure to pay the filing fee. The thirty day period has now expired, and plaintiff has not shown cause. Rather, he has filed a purported "motion to strike" the court's February 17 order. The background to plaintiff's motion is as follows:
On March 10, 2011, the previously assigned magistrate judge denied plaintiff's motion to proceed in forma pauperis, citing Stephen v. Hernandez, 08-cv-0750 BEN BLM P (S.D. Cal.). In Hernandez, the district court found that, based on several past cases filed by plaintiff, plaintiff had "struck out" under 28 U.S.C. § 1915(g). The court dismissed the case without prejudice for plaintiff's failure to prepay the filing fee. (Id., Dkt. Nos. 4, 5.) Plaintiff moved for reconsideration, and the judgment of dismissal was affirmed on November 14, 2008, as plaintiff still had not paid the filing fee. The case has been closed since that date. (Id., Dkt. No. 10.)
In his March 23, 2012 motion to strike, plaintiff argues that he has not struck out because the Hernandez court's order of dismissal was not a "final order." This argument is without merit. Plaintiff's complaint in Hernandez could not be "saved through amendment," as he claims; rather, he was barred from proceeding unless he paid the filing fee, which he failed to do. Similarly here, plaintiff is a three-strikes inmate who failed to pay the filing fee when given an opportunity to do so.
On March 26, 2012, plaintiff filed a request to file a late motion to strike. He argues that prison mailroom staff is impeding his outgoing legal mail. As the court has considered plaintiff's motion to strike, this motion will be denied as moot.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's March 23, 2012 motion to strike the order to show cause is denied; and
2. Plaintiff's March 26, 2012 motion for leave to file a late motion to strike is denied as moot.
IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. See Local Rule 110; Fed. R. Civ. P. 41(b).
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE