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Robin C. Briggs v. Gary Swarthout

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


February 14, 2013

ROBIN C. BRIGGS, PETITIONER,
v.
GARY SWARTHOUT, RESPONDENT.

The opinion of the court was delivered by: Allison Claire United States Magistrate Judge

ORDER and FINDINGS & RECOMMENDATIONS

Petitioner is a state prisoner who proceeds pro se on this petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.

On August 2, 2012, the magistrate judge previously assigned to this action ordered petitioner to file, within 30 days, to submit either an application to proceed in forma pauperis or the filing fee. See ECF No. 4. A review of the record reflects that, to date, plaintiff has not moved to proceed in forma pauperis or paid the filing fee.

On September 25, 2012, respondent moved to dismiss the petition, arguing that the only cognizable claim raised by petitioner had not been exhausted. See ECF No. 8. Any opposition or response to respondent's motion was due within 30 days after service of the motion. See ECF No. 4, ¶ 5. A review of the docket reflects that, to date, petitioner has not filed any response or opposition to the motion to dismiss.

On January 4, 2013, the undersigned ordered the Clerk to serve petitioner with a copy of the motion to dismiss, and also ordered that, within 30 days, petitioner file a response to the motion to dismiss. See ECF No. 11 at 2. The court specifically advised petitioner that his failure to response to the motion to dismiss may be deemed a waiver of any opposition, and may result in a recommendation that the petition be dismissed for the reasons cited in the motion. Id.

The court's January 4, 2013 order further directed petitioner, within 30 days, to comply with the court's August 2, 2012 order. See ECF No. 11. The court specifically advised petitioner that failure to comply with the August 2, 2012 order may result in a recommendation that this petition be dismissed without prejudice.

A review of the court's docket reflects that, to date, petitioner has not: (1) filed an application to proceed in forma pauperis; (2) paid the filing fee; (3) filed a response to the motion to dismiss; or (4) otherwise responded in any way to the court's August 2, 2012 and January 4, 2013 orders.

Accordingly, IT IS HEREBY ORDERED that a district judge be assigned to this matter, and

IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice for failure to pay the filing fee.

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-eight (28) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within twenty-eight (28) days after service of the objections.

The parties are 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).

20130214

© 1992-2013 VersusLaw Inc.



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