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Larry Francis Durden v. Cdcr

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


September 2, 2011

LARRY FRANCIS DURDEN,
PLAINTIFF,
v.
CDCR, ET AL.,
DEFENDANTS.

ORDER DENYING PLAINTIFF'S MOTION TO COMPEL AND ORDER GRANTING PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO FILE AN IN FORMA PAUPERIS APPLICATION (ECF Nos. 18 & 19)

ORDER

Plaintiff Larry Francis Durden ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on June 6, 2011. (ECF No. 1.) Plaintiff's Complaint has not yet been screened by the Court.

Pending before the Court now are a Motion to Compel and a Motion for Extension of Time to file an in forma pauperis application. (ECF Nos. 18 & 19.)

In the Motion to Compel, Plaintiff appears to be asking that the CDCR R. J. Donovan Correctional Facility be required to produce a copy of Plaintiff's trust account statement. The Court notes that Plaintiff does not state that he has requested such statement. Plaintiff states that the facility has not processed his 28 U.S.C. § 1915.

The Court can not determine what Plaintiff is claiming or what relief he is seeking. The Court reminds Plaintiff that he must file an application to proceed in forma pauperis in this action and that then, within sixty (60) days of the Order granting IFP status, Plaintiff must submit a certified copy of his prison trust statement for the six month period immediately preceding the filing of his Complaint. Plaintiff has not filed an application to proceed in forma pauperis in this action.

At the present stage in the proceedings, a motion to compel is not the proper course of action. General discovery has not been opened. Defendants have not been named nor required to disclose anything. Under Rule 37 of the Federal Rules of Civil Procedure, a motion to compel may be brought "[i]f a party fails to make a disclosure required by Rule 26(a)" or replies to a discovery request with an "evasive or incomplete disclosure, answer, or response." See Fed.R.Civ.P. 37(a). Therefore, Plaintiff's Motion to Compel is DENIED.

Plaintiff's pleading is titled Motion for Extension Time, however, it appears to be asking about the status of a filing. Specifically, Plaintiff asks whether the Court has received his application for in forma pauperis. (ECF No. 19.) Plaintiff states that he sent it on August 25, 2011. The Court notes that it has not received an application to proceed in forma pauperis in this action. The Court also notes that the current deadline for Plaintiff to file an application is September 12, 2011. (ECF No. 17.)

The Court will grant Plaintiff one final extension of time to file his application to proceed in forma pauperis.

Accordingly, the Court HEREBY ORDERS that

1. Plaintiff's Motion to Compel is DENIED;

2. Plaintiff's Motion for Extension is GRANTED;

3. Plaintiff's application to proceed in forma pauperis is due no later than October 1, 2011; and

4. No further extensions of time will be given. IT IS SO ORDERED.

UNITED STATES MAGISTRATE JUDGE

20110902

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