(PC) Whitaker v. California Department of Corrections et al Doc.

Case 2:05-cv-02024-GEB-DAD Document 4 Filed 10/13/2005 Page 1 of 2

8 IN THE UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

10 J. WHITAKER,

11 Plaintiff, No. CIV S-05-2024 GEB DAD P

12 vs.

13 CDC, et al.,

14 Defendants. ORDER

15 /

16 Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant

17 to 42 U.S.C. § 1983 together with a request for leave to proceed in forma pauperis pursuant to 28

18 U.S.C. § 1915. However, the certificate portion of the request which must be completed by

19 plaintiff’s institution of incarceration has not been filled out. Also, plaintiff has not filed a

20 certified copy of his prison trust account statement for the six month period immediately

21 preceding the filing of the complaint. See 28 U.S.C. § 1915(a)(2). Plaintiff will be provided the

22 opportunity to submit a completed in forma pauperis application and a certified copy in support

23 of his application.

24 In addition, plaintiff indicates in his complaint that he did not fully exhausted his

25 administrative remedies prior to filing this lawsuit. By the provisions of the Prison Litigation

26 Reform Act of 1995, 42 U.S.C. § 1997e was amended to provide that “[n]o action shall be

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1 brought with respect to prison conditions under section 1983 of this title, or any other Federal

2 law, by a prisoner confined in any jail, prison, or other correctional facility until such

3 administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Plaintiff is

4 advised that should he proceed with this action, the court will recommend dismissal without

5 prejudice due to his failure to exhaust administrative remedies prior to filing this action.

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

7 1. Plaintiff shall submit, within thirty days from the date of this order, either a

8 completed affidavit in support of his request to proceed in forma pauperis on the form provided

9 by the Clerk of Court and a certified copy of his prison trust account statement for the six month

10 period immediately preceding the filing of the complaint, or a notice of voluntary dismissal of

11 this action;

12 2. The Clerk of the Court is directed to send plaintiff a new Application to

13 Proceed In Forma Pauperis By a Prisoner; and

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

15 that this action be dismissed without prejudice.

16 DATED: October 12, 2005.

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