Burton v. McDonald et al

Filing 4

ORDER signed by Magistrate Judge Kendall J. Newman on 8/29/2011 ORDERING plaintiff shall submit, w/i 30 days from date of this order, an affidavit in support of his request to proceed IFP; Clerk is directed to send plaintiff the IFP form. (Waggoner, D)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ERIC WILTON BURTON,

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Plaintiff,

No. 2:11-cv-2187 KJN P

vs.
M. McDONALD, et al.,
Defendants.

ORDER
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Plaintiff, a state prisoner proceeding without counsel, has filed a civil rights action

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pursuant to 42 U.S.C. § 1983. Plaintiff has not, however, filed an in forma pauperis affidavit or

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paid the required filing fee. See 28 U.S.C. §§ 1914(a), 1915(a). (Plaintiff has submitted only a

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copy of his prisoner trust fund account statement. (Dkt. No. 2.)) Therefore, plaintiff will be

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provided the opportunity either to submit the appropriate affidavit in support of a request to

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proceed in forma pauperis or to submit the appropriate filing fee.

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The court further notes that plaintiff’s request to proceed in forma pauperis

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pursuant to 28 U.S.C. § 1915(g) (based on plaintiff’s assertion that he “is under imminent danger

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of serious physical injury”) does not apply under these circumstances. The cited language

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applies only to requests for an exception to application of that provision, which precludes in

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forma pauperis status to prisoners who have had three or more cases dismissed because they were
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found to be frivolous, malicious, or failed to state a claim upon which relief could be granted. Id.

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Review of plaintiff’s filings indicates that he has not, to date, been designated a “three strikes”

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plaintiff under this provision (although it is clear that plaintiff has been a frequent litigator).

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Therefore, there is no basis for application of the cited provision.1

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff shall submit, within thirty days from the date of this order, an affidavit

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in support of his request to proceed in forma pauperis on the form provided by the Clerk of

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Court, or the appropriate filing fee; plaintiff's failure to comply with this order may result in the

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dismissal of this action; and

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2. The Clerk of Court is directed to send plaintiff a new Application to Proceed In

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Forma Pauperis By a Prisoner.

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DATED: August 29, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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burt2187.3a.plus

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If plaintiff is, instead, seeking preliminary injunctive relief, he must, together with his
completed application to proceed in forma pauperis, file a separate motion seeking such relief;
such motion should be short and concise, referencing without reiterating the allegations of
plaintiff’s complaint.
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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ERIC WILTON BURTON,

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Plaintiff,

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vs.
M. McDONALD, et al.,

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SUBMISSION OF

Defendants.

IFP or FILING FEE

____________________________________/

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No. 2:11-cv-2187 KJN P

Plaintiff hereby submits the following document in compliance with the court’s
order filed

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IFP affidavit

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The appropriate filing fee

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Date

Plaintiff

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