Diaz v. Stainer et al

Filing 6

ORDER signed by Magistrate Judge Kendall J. Newman on 11/10/15 ORDERING that 1 Motion for TRO is DENIED without prejudice. Plaintiff is granted thirty days from the date of service of this order to file a complaint that complies with the requirements; Clerk of the Court is directed to send plaintiff the courts form for filing a civil rights action and the application to proceed in forma pauperis by a prisoner. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MIGUEL DIAZ,

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No. 2:15-cv-2173 JAM KJN P (TEMP)
Plaintiff,

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v.

ORDER

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MATTHEW STAINER, et al.,

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Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed a document styled “Emergency

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Motion for TRO and Preliminary Injunction.” Therein, plaintiff complains that a Dr. McAlister

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refuses to re-schedule plaintiff’s previously-authorized shoulder surgery. Plaintiff has not filed

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any other pleadings or documents with the court.
In order to commence an action, plaintiff must file a complaint as required by Rule 3 of

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the Federal Rules of Civil Procedure, and plaintiff must either pay the required filing fee or file an

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application requesting leave to proceed in forma pauperis.1 See 28 U.S.C. §§ 1914(a), 1915(a).

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The court will not issue any orders granting or denying relief until plaintiff properly commences

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this action. Therefore, the court will deny plaintiff’s pending motion without prejudice. The

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If leave to file in forma pauperis is granted, plaintiff will still be required to pay the filing fee
but will be allowed to pay it in installments.
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court will provide plaintiff with an opportunity to file a complaint and to submit an application

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

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

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1. Plaintiff’s Emergency Motion for TRO and Preliminary Injunction (Doc. No. 1) is

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denied without prejudice;

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2. Plaintiff is granted thirty days from the date of service of this order to file a complaint

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that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure,

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and the Local Rules of Practice; the complaint must bear the docket number assigned this case.

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Plaintiff shall also submit, within thirty days from the date of this order, the application to

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proceed in forma pauperis on the form provided by the Clerk of Court, or the filing fee in the

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amount of $400.00.2 Plaintiff’s failure to comply with this order will result in a recommendation

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that this action be dismissed; and
3. The Clerk of the Court is directed to send plaintiff the court’s form for filing a civil

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rights action and the application to proceed in forma pauperis by a prisoner.

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Dated: November 10, 2015

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diaz2173.nocompl

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The $400.00 is comprised of the $350.00 filing fee and a $50.00 administrative fee. If the court
grants plaintiff leave to proceed in forma pauperis, plaintiff will not need to pay the $50.00
administrative fee.
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