Childs v. State of California et al

Filing 3

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/15/2013 ORDERING the Clerk to send plaintiff the form complaint and application for leave to proceed ifp; within 30 days, plaintiff shall either pay the $350 filing fee or submit a complet e ifp application; within 30 days, 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.(Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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E. CHILDS,
Plaintiff,

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No. 2:13-cv-0670 EFB P

vs.
STATE OF CALIFORNIA, et al.,
ORDER

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Defendants.
/
Plaintiff is a prisoner confined to the Richard J. Donovan Correctional Facility. He is

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proceeding pro se and it appears that he is attempting to commence a civil action under 42

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U.S.C. § 1983. Although he has not filed a complaint and has no action currently pending, on

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April 5, 2013 plaintiff filed a motion for a temporary restraining order. Dckt. No. 1. A

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complaint is necessary for the commencement of a civil action and without a pending civil action

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there is no basis for granting a temporary restraining order.

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Plaintiff also has not paid the filing fee nor has he sought leave to proceed in forma

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pauperis. To proceed with a civil action, a plaintiff must pay the $350 filing fee required by 28

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U.S.C. § 1914(a) or request leave to proceed in forma pauperis and submit the affidavit and trust

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account statement required by 28 U.S.C. § 1915(a). Section 1915(a)(2) requires “a prisoner

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seeking to bring a civil action without prepayment of fees or security therefor, in addition to
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filing the affidavit filed under paragraph (1), shall submit a certified copy of the trust fund

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account statement (or institutional equivalent) for the prisoner for the 6-month period

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immediately preceding the filing of the complaint . . . , obtained from the appropriate official of

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each prison at which the prisoner is or was confined.” In order to proceed, plaintiff must, in

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addition to submitting a complain, either pay the filing fee or comply with the in forma pauperis

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statute.

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If plaintiff submits a complaint it must contain a short and plain statement of plaintiff’s

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claim showing that he is entitled to relief. Fed. R. Civ. P. 3; Fed. R. Civ. P. 8. A complaint must

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also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a). To state a

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claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right

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secured by the Constitution or laws of the United States was violated, and (2) that the alleged

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violation was committed by a person acting under the color of state law. West v. Atkins, 487

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U.S. 42, 48 (1988). A complaint must identify as a defendant only persons who personally

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participated in a substantial way in depriving the plaintiff of a federal constitutional right.

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Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the

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deprivation of a constitutional right if he does an act, participates in another’s act or omits to

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perform an act he is legally required to do that causes the alleged deprivation). A complaint

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must allege with at least some degree of particularity overt acts which defendants engaged in that

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support plaintiff’s claim. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984).

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Plaintiff may draft his claims on the form complaint used by this court.

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Until plaintiff submits a complaint and either pays the filing fee or meets the

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requirements of 28 U.S.C. § 1915(a), there simply is no case before the court.

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Accordingly, it hereby is ORDERED that:

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1. The Clerk of the Court shall send to plaintiff the form complaint and application for

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leave to proceed in forma pauperis used in this court.

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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

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nature of the action and his belief that he is entitled to redress. Failure to comply with this order

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may result in a recommendation that this action be dismissed.

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Dated: April 15, 2013.

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