United States District Court, D. Nevada
REPORT OF FINDINGS AND RECOMMENDATION
A. LEEN UNITED STATES MAGISTRATE JUDGE.
matter is before the court on Petitioner Raymond Inoue's
failure to comply with the court's Order (ECF No. 5).
This proceeding is referred to the undersigned pursuant to 28
U.S.C. § 636(b)(1)(B) and LR IB 1-4 of the Local Rules
Inoue filed what he called “Petitioners Request for a
Writ of Stay, ” on December 29, 2017, but did not pay
the standard filing fee or submit an application to proceed
in forma pauperis (“IFP”). Thus, the
court entered an order instructing the Clerk of Court to mail
Mr. Inoue a blank IFP application for incarcerated litigants.
See Jan. 17, 2018 Order (ECF No. 3). The Order also
explained that Inoue's petition challenged his removal
and request for asylum in the immigration court or in
administrative proceedings, and that judicial review of a
removal order lies in the court of appeals, and not this
court. The court therefore gave Mr. Inoue until February 16,
2018, to file a brief statement indicating whether he wished
to withdraw his petition to avoid being assessed the filing
fee after screening. Given his upcoming transfer to federal
custody, the court specifically advised Inoue that “he
must immediately file with the court written notification of
any change of mailing address and contact information, and
his failure to comply may result in sanctions, including
dismissal of the action.” Id. at 7 (citing LR
IA 3-1; LSR 2-2; Carey v. King, 856 F.2d 1439, 1441
(9th Cir. 1988)). Mr. Inoue was further warned that his
failure to comply with the Order on or before February 16,
2018, by: (a) submitting a new IFP application, (b) paying
the filing fee, or (c) filing a statement indicating he
wished to withdraw his petition, would result in a
recommendation to the district judge that this case be
dismissed. Id. at 7-8.
Inoue subsequently filed a new IFP application (ECF No. 4).
However, the court could not determine whether he qualified
to proceed IFP in this case because he failed to include a
copy of his inmate trust account statement. See Feb.
6, 2018 Order (ECF No. 5) at 3. The court again instructed
the Clerk of Court to mail Mr. Inoue a blank IFP application
for incarcerated litigants. Id. Mr. Inoue was
ordered to submit a complete IFP application, accompanied by
a signed and executed financial certificate, a signed and
executed financial affidavit, and a statement of his inmate
trust account on or before March 8, 2018, if he wished to
proceed. Id. In the alternative, Inoue was allowed
to pay the $400 filing fee on or before March 8, 2018.
Id. The court cautioned Mr. Inoue again that his
failure to comply with the Order by: (a) submitting a new IFP
application, (b) paying the filing fee before the March 8,
2018 deadline would result in a recommendation to the
district judge that this case be dismissed. Id.
date, Mr. Inoue has failed to comply with this court's
Order (ECF No. 5) and has not requested and extension of time
to do so. Furthermore, a review of the docket shows that the
Order (ECF No. 5) mailed to Mr. Inoue via U.S. Postal Service
was returned stamped “Return to Sender; Attempted - Not
Known; Unable to Forward; Reason: Parole.”
of these reasons, IT IS RECOMMENDED that
action be DISMISSED without prejudice to the
plaintiffs ability to commence a new action in which he
either pays the appropriate filing fee in full, or submits a
completed application to proceed in forma pauperis.
Clerk of the Court be instructed to close this case and to
enter judgment accordingly.
Report of Findings and Recommendation is submitted to the
assigned district judge pursuant to 28 U.S.C. §
636(b)(1) and is not immediately appealable to the Court of
Appeals for the Ninth Circuit. Any notice of appeal to the
Ninth Circuit should not be filed until entry of the district
court's judgment. See Fed. R. App. Pro. 4(a)(1).
Pursuant to LR IB 3-2(a) of the Local Rules of Practice, any
party wishing to object to a magistrate judge's findings
and recommendations of shall file and serve specific
written objections, together with points and authorities
in support of those objections, within 14 days of the date of
service. See also 28 U.S.C. § 636(b)(1); Fed.
R. Civ. Pro. 6, 72. The document should be captioned
“Objections to Magistrate Judge's Report of
Findings and Recommendation, ” and it is subject to the
page limitations found in LR 7-3(b). The parties are advised
that failure to file objections within the specified time may
result in the district court's acceptance of this Report
of Findings and Recommendation without further review.
United States v. Reyna-Tapia, 328 F.3d 1114, 1121
(9th Cir. 2003). In addition, failure to file ...