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Bracamonte v. Kimzey

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


March 25, 2009

JOHN EFFRAIN BRACAMONTE, PLAINTIFF,
v.
KIMZEY, DEFENDANT.

ORDER

Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983. On January 28, 2009, the court ordered plaintiff to file an in forma pauperis affidavit or pay the appropriate filing fee within thirty days and cautioned plaintiff that failure to do so would result in a recommendation that this action be dismissed. The thirty day period expired, and plaintiff had not responded to the court's order and had not filed an in forma pauperis affidavit or paid the appropriate filing fee. Accordingly, on March 11, 2009, the court issued findings and recommendations, recommending dismissal of this action.

In response to the court's findings and recommendations, plaintiff has filed objections arguing that he has submitted an application to proceed in forma pauperis in this action. Plaintiff is advised that the court has not received his in forma pauperis affidavit. However, good cause appearing, the court will vacate its findings and recommendations and grant plaintiff an additional thirty days to pay the required filing fee of $350.00 or file an application to proceed in forma pauperis. See 28 U.S.C. §§ 1914(a) & 1915(a). Plaintiff is cautioned that the in forma pauperis application form includes a section that must be completed by a prison official, and the form must be accompanied by a certified copy of plaintiff's prison trust account statement for the six-month period immediately preceding the filing of this action.

Accordingly, IT IS HEREBY ORDERED that:

1. The court's March 11, 2009 findings and recommendations are vacated;

2. Plaintiff shall submit, within thirty days from the date of this order, either the $350.00 filing fee or a properly completed application to proceed in forma pauperis on the form provided with this order; plaintiff is cautioned that failure to comply with this order or seek an extension of time to do so will result in a recommendation that this action be dismissed without prejudice; and

3. The Clerk of the Court is directed to send plaintiff an Application to Proceed In Forma Pauperis By a Prisoner for use in a civil rights action.

20090325

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