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Thomas Alfred Usher v. Tim Virga

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


January 5, 2011

THOMAS ALFRED USHER, PLAINTIFF,
v.
TIM VIRGA, DEFENDANT.

ORDER

Plaintiff is a prisoner confined at California State Prison Sacramento. In the action he seeks to commence, he is without counsel. It appears that he intends to seek relief for alleged civil rights violations. See 42 U.S.C. § 1983. On December 17, 2010, he filed a motion for a temporary restraining order. Plaintiff has not paid the filing fee or sought leave to proceed in forma pauperis. Neither has he filed a complaint or other documents that this court requires in order to issue a temporary restraining order. See E. D. Local Rule 65-231(c). Plaintiff is hereby informed of the materials necessary to obtain a temporary restraining order.

To proceed with a civil action, a plaintiff must pay the $350 filing fee required by 28 U.S.C. § 1914(a) or request leave to proceed in forma pauperis and submit the affidavit and trust account statement required by 28 U.S.C. § 1915(a)(1). Section 1915(a)(2) requires "a prisoner seeking to bring a civil action without prepayment of fees or security therefor, in addition to filing the affidavit filed under paragraph (1), shall submit a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint . . . , obtained from the appropriate official of each prison at which the prisoner is or was confined." In order to proceed, plaintiff must either pay the filing fee or comply with the in forma pauperis statute.

Furthermore, a complaint is necessary for the commencement of a civil action. Fed. R. Civ. P. 3. Any complaint must contain "a short and plain statement of plaintiff's claim showing that he is entitled to relief." Fed. R. Civ. P. 8. Plaintiff may draft his claims on the form complaint used by this court.

In addition to the materials listed above, a prisoner moving for a temporary restraining order must, at a minimum, file a brief on the legal issues presented in the motion and an affidavit detailing the notice, or efforts to effect notice, to the affected parties or their counsel. E. D. Local Rule 65-231(c). In the alternative, he must make a showing of good cause why notice should not be given. Id.

Accordingly, it hereby is ORDERED that: 1. Within 15 days of the date this order is served, plaintiff shall submit the required documents listed above. In lieu of submitting a complete application to proceed in forma pauperis, plaintiff may pay the $350 filing fee. Failure to comply with this order will result in an order denying the motion for a temporary restraining order and directing the Clerk of Court to close this case.

2. The Clerk of the Court shall send to plaintiff the form complaint and application for leave to proceed in forma pauperis used in this court.

20110105

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