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 On December 7, 2005, plaintiff filed “objections” to this order. In essence, plaintiff

asserts that he has not “struck out” under 28 U.S.C. § 1915(g) and therefore he should not be

required to pay the filing fee before continuing. The court has reviewed plaintiff’s objections. 

The objections are not well taken as plaintiff still fails to show–as he did in his response to the

court’s October 20, 2005 order to show cause–that exhibits B, C, D and E attached to the motion

to dismiss (docket #15) filed in case number CIV-S-03-1270 do not provide a basis for finding

that plaintiff has struck out. Plaintiff does not even argue that the four cases referenced in those

exhibits do not provide a basis for finding that plaintiff has “struck out.”

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

MICHAEL ANTHONY MILLER,

Plaintiff, No. CIV S-04-2509 MCE KJM P

vs.

ARNOLD SCHWARZENEGGER, et al., ORDER AND

Defendants. FINDINGS AND RECOMMENDATIONS

 /

Plaintiff is a state prisoner proceeding pro se with an action for violation of civil

rights under 42 U.S.C. § 1983. On November 21, 2005, plaintiff was ordered to pay the $150.00

filing fee then in effect for this action within twenty days and was warned that failure to do so

would result in a recommendation that this action be dismissed.1 Plaintiff has not paid the filing

fee for this action. In light of the foregoing, the court will deny all outstanding motions and

recommend that this action be dismissed.

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 Plaintiff requests that the court take judicial notice of his voluntary dismissal of CIV-S03-1270. Even if the court were to take such notice, the voluntary nature of that dismissal does

not alter the conclusion that plaintiff previously struck out based on the cases relied on in

defendants’ motion to dismiss in the voluntarily dismissed case. 

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Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff’s April 13, 2005 “motion for a temporary restraining order and

preliminary injunction” is denied;

2. Plaintiff’s August 29, 2005 “request for ruling on pending matters. . .” is

denied; and

3. Plaintiff’s February 8, 2006 “request for the court to take judicial notice”2 is

denied.

IT IS HEREBY RECOMMENDED that this action be dismissed.

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 fifteen

days after being served with these findings and recommendations, plaintiff may file written

objections with the court. Such a document should be captioned “Objections to Magistrate

Judge’s Findings and Recommendations.” Plaintiff is 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). 

DATED: March 13, 2006.

______________________________________

UNITED STATES MAGISTRATE JUDGE

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mill2509.57

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