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Miguel Diaz v. Swarthout

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


April 11, 2012

MIGUEL DIAZ, PLAINTIFF,
v.
SWARTHOUT, ET AL., DEFENDANTS.

ORDER

Plaintiff is a prisoner confined to California State Prison, Solano. He is proceeding pro se and it appears that he is attempting to commence a civil action under 42 U.S.C. § 1983. On March 22, 2012, plaintiff filed a motion for a temporary restraining order. Dckt. No. 1.

Plaintiff has not paid the filing fee or sought leave to proceed in forma pauperis. 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). 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.

Nor has plaintiff filed a complaint. A complaint is necessary for the commencement of a civil action and must contain a short and plain statement of plaintiff's claim, showing that he is entitled to relief. Fed. R. Civ. P. 3; Fed. R. Civ. P. 8. Plaintiff may draft his claims on the form complaint used by this court.

Until plaintiff submits a complaint and either pays the filing fee or meet the requirements of 28 U.S.C. § 1914(a), there simply is no case before the court.

Accordingly, it hereby is ORDERED that:

1. 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.

2. Withing 30 days of the date of this order, plaintiff shall either pay the $350 filing fee or submit a complete application for leave to proceed in forma pauperis; and

3. Within 30 days of the date of this order, plaintiff shall submit a complaint stating the nature of the action and his belief that he is entitled to redress. Failure to comply with this order will result in a recommendation that this action be dismissed.

20120411

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