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E. Childs v. State of California

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


April 15, 2013

E. CHILDS, PLAINTIFF,
v.
STATE OF CALIFORNIA, ET AL., DEFENDANTS.

ORDER

Plaintiff is a prisoner confined to the Richard J. Donovan Correctional Facility. He is proceeding pro se and it appears that he is attempting to commence a civil action under 42 U.S.C. § 1983. Although he has not filed a complaint and has no action currently pending, on April 5, 2013 plaintiff filed a motion for a temporary restraining order. Dckt. No. 1. A complaint is necessary for the commencement of a civil action and without a pending civil action there is no basis for granting a temporary restraining order.

Plaintiff also has not paid the filing fee nor has he 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, in addition to submitting a complain, either pay the filing fee or comply with the in forma pauperis statute.

If plaintiff submits a complaint it 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. A complaint must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). A complaint must identify as a defendant only persons who personally participated in a substantial way in depriving the plaintiff of a federal constitutional right. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a constitutional right if he does an act, participates in another's act or omits to perform an act he is legally required to do that causes the alleged deprivation). A complaint must allege with at least some degree of particularity overt acts which defendants engaged in that support plaintiff's claim. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984).

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 meets the requirements of 28 U.S.C. § 1915(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. Within 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.

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 may result in a recommendation that this action be dismissed.

20130415

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