The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff, a state prisoner proceeding without counsel, has filed a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has not, however, filed an in forma pauperis affidavit or paid the required filing fee. See 28 U.S.C. §§ 1914(a), 1915(a). (Plaintiff has submitted only a copy of his prisoner trust fund account statement. (Dkt. No. 2.)) Therefore, plaintiff will be provided the opportunity either to submit the appropriate affidavit in support of a request to proceed in forma pauperis or to submit the appropriate filing fee.
The court further notes that plaintiff's request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(g) (based on plaintiff's assertion that he "is under imminent danger of serious physical injury") does not apply under these circumstances. The cited language applies only to requests for an exception to application of that provision, which precludes in forma pauperis status to prisoners who have had three or more cases dismissed because they were found to be frivolous, malicious, or failed to state a claim upon which relief could be granted. Id. Review of plaintiff's filings indicates that he has not, to date, been designated a "three strikes" plaintiff under this provision (although it is clear that plaintiff has been a frequent litigator). Therefore, there is no basis for application of the cited provision.*fn1
In accordance with the above, IT IS HEREBY ORDERED that: 1. Plaintiff shall submit, within thirty days from the date of this order, an affidavit in support of his request to proceed in forma pauperis on the form provided by the Clerk of Court, or the appropriate filing fee; plaintiff's failure to comply with this order may result in the dismissal of this action; and
2. The Clerk of Court is directed to send plaintiff a new Application to Proceed In Forma Pauperis By a Prisoner.
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
ERIC WILTON BURTON, Plaintiff, M. McDONALD, et al., SUBMISSION OF Defendants.
No. 2:11-cv-2187 KJN P v.
Plaintiff hereby submits the following document in compliance with the court's order filed
______________ IFP affidavit ______________ The appropriate filing fee