United States District Court, S.D. California
December 2, 2005.
MIKE E. MITCHELL, Petitioner,
STATE OF CALIFORNIA, et al., Respondents.
The opinion of the court was delivered by: IRMA GONZALEZ, District Judge
ORDER DISMISSING CASE WITHOUT PREJUDICE AND WITH LEAVE TO AMEND
On August 23, 2005, Petitioner, a state prisoner proceeding pro
se, filed a Petition for Writ of Habeas Corpus pursuant to
28 U.S.C. § 2254. On August 31, 2005, this Court dismissed the
petition because Petitioner had failed to either pay the $5.00
filing fee or move to proceed in forma pauperis, failed to name a
proper respondent and failed to state a cognizable federal claim.
(See Order dated August 31, 2005 [doc. no. 3].) Petitioner was
given until October 24, 2005 to either pay the $5.00 filing fee
or submit adequate proof of his inability to pay the fee and to
submit a First Amended Petition which named a proper respondent
and stated ca cognizable federal claim.
On November 8, 2005, Petitioner filed a First Amended petition
which named a proper respondent and which stated a cognizable
federal claim. He has therefore partially complied with the
Court's August 31, 2005 Order. However, Petitioner has neither
paid the $5.00 filing fee or filed a motion to proceed in form a pauperis despite the
fact that Petitioner indicates in the First Amended Petition that
a $5.00 check is enclosed. The Court has not received such a
Accordingly, the case is DISMISSED without prejudice and with
leave to amend because Petitioner has failed to fully comply with
the August 31, 2005 Order. If Petitioner wishes to proceed with
this case, he must, no later than January 4, 2006, either pay
the $5.00 filing fee or file a motion to proceed in forma
IT IS SO ORDERED.
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