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McNeil v. Walker

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 9, 2009

JAMES ROY MCNEIL, PLAINTIFF,
v.
J. WALKER, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to Eastern District of California local rules.

On January 21, 2009, the Magistrate Judge filed findings and recommendations herein which were served on the parties and which contained notice that the parties may file objections within a specified time. Timely objections to the findings and recommendations have been filed.

The Magistrate Judge recommends dismissal of this action for lack of prosecution and failure to comply with court rules and orders based on plaintiff's failure to resolve the fee status for this case. The records reflects that plaintiff has been provided numerous opportunities to file a completed application for leave to proceed in forma pauperis, which includes a certified copy of plaintiff's prison trust account statement, or the full filing fee. Plaintiff, however, has not complied. Specifically, while he has filed several applications for leave to proceed in forma pauperis and has filed copies of his prison trust account statement, none of the trust account statements submitted have been certified as required by statute. Plaintiff has never suggested that prison officials are thwarting his ability to comply or otherwise shown good cause why this action should not be dismissed without prejudice.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed January 21, 2009, are adopted in full;

2. This action is dismissed, without prejudice, for lack of prosecution and failure to comply with court rules and orders; and

3. The Clerk of the Court is directed to enter judgment of dismissal and close this file.

20090309

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