Osband v. San Quentin State Prison

Filing 3

ORDER signed by Magistrate Judge Edmund F. Brennan on 8/29/13 ORDERING that the Clerk of the Court is directed to mail to plaintiff a form application for leave to proceed in forma pauperis and a form for filing a civil rights action under 42 U.S .C. § 1983. Plaintiff has 30 days from the date of service of this order to submit either the filing fee or the application required by § 1915(a). Plaintiff has 30 days from the date of service of this order to submit a complaint. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LANCE IAN OSBAND,

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Plaintiff,

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No. 2:13-cv-1755-EFB P

v.

ORDER

SAN QUENTIN STATE PRISON
WARDEN,
Defendant.

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Plaintiff is state prisoner proceeding without counsel. He has filed a document that

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references the case number for the habeas (death penalty) action that he is pursuing in this court,

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but the subject matter of the document does not relate to those proceedings. Rather, it seems that

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plaintiff wishes to pursue a civil action challenging a rules violation report charging him with

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“sexual behavior (masturbation w/ exposure)” that he received on July 23, 2013 at California

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State Prison, San Quentin. See ECF No. 1.
To proceed with a civil action a plaintiff must pay the $400 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). Plaintiff has neither paid the fee nor

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submitted a proper application for leave to proceed in forma pauperis. Plaintiff has 30 days to

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either pay the fee or file a proper application.

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To properly commence a civil action, plaintiff must also file a signed complaint. Fed. R.

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Civ. P. 3. Rule 8 requires that a complaint include “a short and plain statement of the claim”

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showing entitlement to relief. Fed. R. Civ. P. 8(a)(2). A complaint must identify as a defendant

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only persons who personally participated in a substantial way in depriving plaintiff of a federal

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

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

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

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complaint must contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a).

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Until plaintiff submits a proper 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.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The Clerk of the Court is directed to mail to plaintiff a form application for leave to

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proceed in forma pauperis and a form for filing a civil rights action under 42 U.S.C. § 1983.
2. Plaintiff has 30 days from the date of service of this order to submit either the filing fee
or the application required by § 1915(a).

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3. Plaintiff has 30 days from the date of service of this order to submit a complaint.

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4. Failure to comply with this order may result in this action being dismissed.

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DATED: August 29, 2013.

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