United States District Court, D. Arizona
HONORABLE DAVID C. CAMPBELL JUDGE.
REPORT AND RECOMMENDATION
Camille D. Bibles Untied States Magistrate Judge.
filed his initial complaint and a motion for leave to proceed
in this matter in forma pauperis on or about
December 15, 2017, while detained at the Maricopa County
Lower Buckeye Jail. (ECF No. 1; ECF No. 2). Plaintiff
docketed a First Amended Complaint on April 6, 2018. (ECF No.
5). On June 18, 2018, the Court granted Plaintiff's
motion for leave to proceed in forma pauperis and
ordered Plaintiff to pay an initial filing fee of $6.00 and
to pay a $350.00 filing fee in payments based on the balance
of his Inmate Account. (ECF No. 2; ECF No. 6). The Court also
dismissed the First Amended Complaint and gave Plaintiff
thirty days to file a Second Amended Complaint.
filed a Second Amended Complaint. (ECF No. 8). In a service
order issued December 17, 2018, the Court ordered Defendants
Williams and Thompson to answer Count One of the Second
Amended Complaint and ordered Defendant Bailey to answer
Count Three of the Second Amended Complaint and dismissed all
of the other Defendants and counts of the complaint without
prejudice. (ECF No. 10).
Court's service order at ECF No. 10 warned Plaintiff:
If Plaintiff is released while this case remains pending, and
the filing fee has not been paid in full, Plaintiff must,
within 30 days of his release, either (1) notify the Court
that he intends to pay the unpaid balance of his filing fee
within 120 days of his release or (2) file a non-prisoner
application to proceed in forma pauperis. Failure to comply
may result in dismissal of this action.
(ECF No. 10 at 12). Furthermore, in the service order
Plaintiff was warned that his failure to comply with any
order of the Court could result in the dismissal of this
case. (ECF No. 10 at 13).
was released from custody at some point prior to December 11,
2018. (ECF No. 13). On January 23, 2019, Plaintiff was ordered
to return service packets for Defendants to the Court and to
file a Notice of Change of Address. (Id.). Plaintiff
filed a Notice of Change of Address on February 8, 2019. (ECF
No. 15). On February 21, 2019, noting Plaintiff had been
released from custody, the Court ordered Plaintiff to either
pay the $350.00 filing fee or file a non-prisoner Application
to Proceed in District Court Without Prepaying Fees or Costs.
(ECF No. 17). The Court ordered Plaintiff to do so no later
than March 25, 2019, and Plaintiff was warned that his
failure to comply with the Order would result in this case
being dismissed. (Id.).
March 14, 2019, the Magistrate Judge issued an Order to Show
Cause, requiring Plaintiff to show cause why his claims
against Defendants should not be dismissed for the failure to
return service packets to the Court and to timely serve
Defendants. (ECF No. 20). Plaintiff then returned service
packets to the Court. Because Plaintiff thereby indicated a
desire to proceed with this case, the Magistrate Judge
granted Plaintiff an extension of the time allowed to comply
with the Court's Order at ECF No. 17. (ECF No. 21). The
Magistrate Judge allowed Plaintiff until April 25, 2019, to
either pay the $350.00 filing fee or file a non-prisoner
Application to Proceed in District Court Without Prepaying
Fees or Costs. (Id.). Plaintiff was warned that his
failure to comply with the Court's Order at ECF No. 17 by
April 25, 2019, would result in the dismissal of this matter
without prejudice. (Id.).
has failed to comply with the Court's Order at ECF No.
17. The Order at ECF No. 17 and the Order at ECF No. 21 both
warned Plaintiff that his failure to pay the balance of the
filing fee or to file a non-prisoner Application to Proceed
in District Court Without Prepaying Fees or Costs would
result in dismissal of this case. Accordingly, IT IS
RECOMMENDED that this matter and Defendants be
dismissed without prejudice for Plaintiffs failure to comply
with this Court's Order at ECF No. 17.
recommendation is not an order that is immediately appealable
to the Ninth Circuit Court of Appeals. Any notice of appeal
pursuant to Rule 4(a)(1), Federal Rules of Appellate
Procedure, should not be filed until entry of the District
to Rule 72(b), Federal Rules of Civil Procedure, Plaintiff
shall have fourteen (14) days from the date of service of a
copy of this recommendation within which to file specific
written objections with the Court. Pursuant to Rule 7.2,
Local Rules of Civil Procedure for the United States District
Court for the District of Arizona, objections to the Report
and Recommendation may not exceed seventeen (17) pages in
to timely file objections to any factual or legal
determinations of the Magistrate Judge will constitute a
waiver of a party's right to appellate review of the
findings of fact and conclusions of law in an order or
judgment entered pursuant to the recommendation of the