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Robin C. Briggs v. Gary Swarthout

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


March 4, 2013

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

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

ORDER

Petitioner, a state prisoner proceeding pro se, has filed this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

On January 4, 2013, the undersigned issued an order alerting petitioner that petitioner had failed: (1) to comply with the court's August 2, 2012 order directing petitioner to file an affidavit in support of his application to proceed in forma pauperis; (2) in the alternative, to pay the $5.00 filing fee; and (3) to object or otherwise to respond to respondent's September 25, 2012 motion to dismiss. See ECF No. 11. The undersigned ordered petitioner, within 30 days, either to file an affidavit in support of his application to proceed in forma paueris or to pay the $5.00 filing fee, AND to respond to the motion to dismiss. Id. The undersigned advised petitioner that failure to comply with the January 4, 2013 order would result in a recommendation that the action be dismissed without prejudice. Id.

Petitioner did not respond to the court's January 4, 2013 order. As a result, on February 14, 2013, the undersigned issued findings and recommendations that the action be dismissed without prejudice. See ECF No. 12.

On February 26, 2013, petitioner filed objections to the findings and recommendation. ECF No. 13. The objections read that petitioner cannot proceed in forma pauperis, but do not disclose why. Id. at 2. The objections further read that, as of February 21, 2013, petitioner has submitted a duplicate trust withdrawal request for the filing fee, but asks that the court provide some additional time to allow him to complete the process. Id. at 1-2. Petitioner also writes that he is preparing the appropriate objections to the "orders, findings and recommendations which will be attached hereto, or will be following soon. . . ." Id. at 2. No objections to the motion to dismiss were attached to the filed objections, and, to date, no objections have been filed.

Accordingly, the undersigned will vacate the February 14, 2013 findings and recommendations, and grant the petitioner one final extension of time: (1) to pay the filing fee, or to file an affidavit in support of his application to proceed in forma pauerpis; and (2) to file his objections or other response to the motion to dismiss. Petitioner is advised that if he fails to pay the fee or to file his in forma pauperis affidavit, or if he fails to file his response to the motion to dismiss, the undersigned will recommend that the court dismiss the action without prejudice.

Good cause appearing, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed February 14, 2013 (ECF No. 12) are vacated;

2. Within 30 days of the filing date of this order, petitioner shall: (1) pay the $5.00 filing fee, or (2) file an affidavit in support of his motion to proceed in forma pauperis. Failure to pay the fee or to file an affidavit shall result in a recommendation that this action be dismissed without prejudice; and

3. Within 30 days of the filing date of this order, petitioner shall file his objection or other response to respondent's September 25, 2012 motion to dismiss. Failure to file an objection or other response within 30 days shall result in a recommendation that this action be dismissed without prejudice.

20130304

© 1992-2013 VersusLaw Inc.



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