Waters v. Davey et al

Filing 10

ORDER signed by Magistrate Judge Dale A. Drozd on 06/13/12 denying 8 Motion to compel and granting 9 Motion for Extension of time. Within 30 days from the service of this order, plaintiff shall file a complaint as set forth in the court's 05/09/12 order, and an application to proceed in forma pauperis with a certified copy of his trust account statement. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL LYNN WATERS,

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Plaintiff,

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vs.

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No. 2:11-cv-2510-JAM-DAD P

L. DAVEY, et al.,

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Defendants.

ORDER
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Plaintiff is a state prisoner proceeding pro se. He initiated proceedings in this

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court on September 22, 2011 be filing a motion for preliminary injunction. Out of an abundance

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of caution, the Clerk of the Court opened this civil action in response to that filing and the court

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issued plaintiff new case documents and instructions. On March 8, 2012 plaintiff filed another

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motion seeking a preliminary injunction and on March 28, 2012 a motion seeking release from

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lockdown status at his institution of confinement.

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Because his initial filing in this action was a motion for a preliminary injunction,

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o May 9, 2012, the court advised plaintiff that in order to commence a civil action he was

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required to file a complaint as required by Rule 3 of the Federal Rules of Civil Procedure and to

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either file an application to proceed in forma pauperis or the $350.00 filing fee. (See Doc. No. 7

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at 1.) Instead, on June 4, 2012, plaintiff filed a document styled, “Motion To Compel Prison
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Officials To Take Plaintiffs [sic] Trust Statement Away From Counselor J.J. Lynch . . . ” and a

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motion for an extension of time to file his “amended complaint.” (Doc. No. 8 & 9.)

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Plaintiff’s motion to compel will be denied since plaintiff has not properly

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commenced this action by filing a complaint. In addition, the court is not persuaded that prison

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authorities have violated any laws or regulations by allowing plaintiff’s counselor to mail

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plaintiff’s trust account statement to the court, regardless of the fact that plaintiff’s counselor

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may be a defendant in this action. The court will provide plaintiff with an extension of time to

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submit his application to proceed in for pauperis and a certified copy of his trust account

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statement. The court will also grant plaintiff’s request for an extension of time to file a

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complaint pursuant to the court’s order of May 9, 2012.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s June 4, 2012, motion to compel (Doc. No. 8) is denied;

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2. Plaintiff’s June 6, 2012 motion for an extension of time (Doc. No. 9) is

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granted;

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3. Within thirty days from the service of this order, plaintiff shall file a complaint

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as set forth in the court’s May 9, 2012 order, and an application to proceed in forma pauperis

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with a certified copy of his trust account statement; and

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4. Plaintiff’s failure to comply with this order will result in a recommendation

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that this action be dismissed.

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DATED: June 13, 2012.

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DAD:kly/4

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