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Deon Carroll v. Tim Virga

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


November 2, 2012

DEON CARROLL, PLAINTIFF,
v.
TIM VIRGA, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). On October 23, 2012, this action was dismissed based on plaintiff's failure to comply with the court's May 30, 2012 order. Plaintiff submitted a handwritten version of a motion seeking leave to proceed in forma pauperis. (Dkt. No. 2.) On May 30, 2012, plaintiff was informed that he must submit the application to proceed in forma pauperis on the form used in this district, and provide a certified trust account statement. (Dkt. No. 4.) Plaintiff's last extension of time expired on October 14, 2012.

On October 25, 2012, plaintiff filed a motion for: extension of time, waiver of "IFP," and appointment of counsel. This motion was dated October 10, 2012. See Houston v. Lack, 487 U.S. 266, 275-76 (1988) (pro se prisoner filing is dated from the date prisoner delivers it to prison authorities). Because the motion was presented to prison officials for mailing prior to the expiration of the filing deadline, the court will vacate the judgment and provide plaintiff an extension of time. However, plaintiff is cautioned that no further extensions of time will be granted. Moreover, plaintiff is advised that this action cannot proceed unless and until plaintiff either files a complete in forma pauperis affidavit with a certified trust account statement, or pays the $350.00 filing fee. There is no provision for this court to waive the filing of the in forma pauperis affidavit unless plaintiff pays the filing fee in full. The certified trust account statement is required under 28 U.S.C. § 1915(a)(2). Plaintiff must file the request on the application form provided by the court. (Dkt. No. 4.)

Plaintiff also requests the appointment of counsel. Plaintiff's motion is premature. The court cannot screen plaintiff's complaint to determine whether it states a cognizable civil rights claim until he either pays the $350.00 filing fee or submits a completed in forma pauperis application. At this early juncture, the court cannot determine whether counsel should be appointed. Thus, the motion is denied without prejudice.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's October 25, 2012 motion for extension of time (dkt. no. 12) is granted;

2. The October 23, 2012 order and judgment are vacated (dkt nos. 10-11);

3. The Clerk of the Court is directed to send plaintiff an application to proceed in forma pauperis by a prisoner;

4. Plaintiff is granted sixty days in which to file a completed application to proceed in forma pauperis; and

5. Plaintiff's request for the appointment of counsel (dkt. no. 12) is denied without prejudice.

20121102

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