Opinion
3:22-CV-5924-BHS
02-08-2023
TAM TRAN, Plaintiff, v. CLARK COUNTY COURT, Defendant.
Noting Date: February 24, 2023
REPORT AND RECOMMENDATION
David W. Christel, Chief United States Magistrate Judge
Petitioner Tam Tran filed a Declaration and Application to Proceed In Forma Pauperis and Written Consent for Payment of Costs (“Application”). Dkt. 1. The District Court has referred Plaintiffs' Application to Proceed In Forma Pauperis (“IFP”) to United States Magistrate Judge David W. Christel pursuant to Amended General Order 11-22.
After screening the proposed petition pursuant to Rule 4 of the Rules Governing § 2254 cases, the Court concluded the proposed petition did not comply with the Rules Governing Section 2254 Cases. Dkt. 3. The Court also found the proposed petition appeared to be untimely and Petitioner did not appear to meet the “in custody” requirements. Id. The Court ordered Petitioner to file an amended petition correcting the identified deficiencies on or before January 23, 2023. Id. The Court warned Petitioner that if he failed to adequately respond to the Court's Order, the Court would recommend the pending Application to Proceed IFP be denied and this case be dismissed. Id.
Petitioner has failed to comply with the Court's Order. He has not responded to the Court's Order and has not filed an amended petition to correct the deficiencies contained within the proposed petition. As Petitioner has failed to respond to the Court's Order and prosecute this case, the Court recommends the Application to Proceed IFP (Dkt. 1) be denied and this case be dismissed without prejudice. Based on the foregoing, the Court also recommends a certificate of appealability be denied.
Pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days from service of this report to file written objections. See also Fed.R.Civ.P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge, see 28 U.S.C. § 636(b)(1)(C), and can result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 142 (1985); Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations omitted). Accommodating the time limit imposed by Fed.R.Civ.P. 72(b), the Clerk is directed to set the matter for consideration on February 24, 2023, as noted in the caption.