Barber v. Kitsap Superior Court

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 10 DANNY JOE BARBER, III, CASE NO. 3:24-cv-05635-TMC-GJL 11 Plaintiff, v. REPORT AND RECOMMENDATION KITSAP SUPERIOR COURT, et al., Noting Date: November 1, 2024 Defendants.

15 The District Court has referred this 42 U.S.C. § 1983 action to United States Magistrate Judge Grady J. Leupold. Plaintiff Danny Joe Barber, III, proceeding pro se, filed a proposed § 1983 Complaint on July 29, 2024. Dkt. 1-1. Plaintiff filed an Application to Proceed In Forma Pauperis (“IFP”), but did not provide a certified copy of his prison trust account statement. See Dkt. 1.

20 On August 6, 2024, the Clerk of Court sent Plaintiff a letter notifying Plaintiff that he had failed to meet the IFP Application filing requirements by not providing the prison trust account statement. Dkt. 3. On the following day, August 7, 2024, the Clerk of Court sent Plaintiff an amended letter notifying him that he had also filed the incorrect IFP form. Dkt. 4. The Clerk enclosed an appropriate IFP Form for Plaintiff’s convenience. See id. Additionally, the Clerk of Court instructed Plaintiff to return the requested documentation to the Court by September 6, 2024. Id. The Clerk also warned Plaintiff that if he did not respond to the letter by September 6, 2024, the action may be subject to dismissal. Id. 5 On August 19, 2024, Plaintiff partially corrected his IFP Application with the filing of his prison trust account statement, but he failed to file a completed and signed IFP Form. See Dkt. 6.

7 As a result, on August 22, 2024, the Clerk of Court sent Plaintiff a second amended letter informing Plaintiff that he had failed to complete and sign his IFP Form and instructing him to return a completed and signed IFP Form to the Court by September 23, 2024. Dkt. 7. The Clerk also enclosed a copy of the IFP Form for Plaintiff’s convenience. See id. Finally, the Clerk warned Plaintiff that if he did not respond to the letter by September 23, 2024, the action may be subject to dismissal. Id. 13 Plaintiff has not responded to the Clerk of Court’s second amended letter and has not returned the requested document to the Court. As Plaintiff has failed to prosecute this case, the Court recommends this case be DISMISSED without prejudice. Further, as Plaintiff has not prosecuted this case, the Court finds an appeal would not be taken in good faith.

17 Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), the parties shall have fourteen (14) days from service of this report to file written objections. See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge, see 28 U.S.C. § 636(b)(1)(C), and can result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 142 (1985); Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations omitted).

23 // 1 Accommodating the time limit imposed by Rule 72(b), the Clerk is directed to set the matter for consideration on November 1, 2024, as noted in the caption.

3 Dated this 18th day of October, 2024.

A 6 Grady J. Leupold United States Magistrate Judge