Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Tomlin v. Gafvert

United States District Court, Ninth Circuit

January 15, 2014

John Henry Tomlin, Plaintiff,
v.
Nathaniel E. Gafvert, et al., Defendants.

ORDER

ROBERT C. BROOMFIELD, Senior District Judge.

Plaintiff John Henry Tomlin, who is confined the Arizona State Prison Complex-Florence, filed a pro se civil rights Complaint in Maricopa County Superior Court. Defendant Gafvert[1] removed the action to this Court on September 30, 2013, and paid the filing fee.

On October 1, 2013, Defendant filed a Motion to Stay Discovery (Doc. 3) and on October 9, 2013, Plaintiff filed a Motion for Extension of Time to Serve Complaint (Doc. 5). The Court will dismiss the Complaint with leave to amend and deny as moot the pending Motions.

I. Removal to Federal Court

Title 28 U.S.C. § 1441 authorizes removal of any civil action brought in the state court over which the federal district courts would have original jurisdiction. "Only... actions that originally could have been filed in federal court may be removed to federal court by the defendant." Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Absent diversity of citizenship (not present here), federal question jurisdiction is required. Federal district courts have original jurisdiction over all civil actions arising under the Constitution of the United States pursuant to 28 U.S.C. § 1331, including those actions where the plaintiff has requested a remedy under state law for an alleged violation of a federal substantive right. Smith v. Kansas City Title & Trust, 255 U.S. 180, 199 (1921).

Plaintiff claims violations of his constitutional rights and has not objected to removal. The Court finds removal was proper.

II. Failure to File Complaint on Court-Approved Form

Pursuant to Local Rule of Civil Procedure 3.4, "[a]ll complaints and applications to proceed in forma pauperis by incarcerated persons shall be signed and legibly written or typewritten on forms approved by the Court." Plaintiff has not filed his Complaint on the court-approved form and the Court is unable to determine the precise number and nature of Plaintiff's claims. The Court will therefore dismiss the Complaint and grant Plaintiff 30 days to file an amended complaint on the court-approved form.

Plaintiff must clearly designate on the face of the document that it is a "First Amended Complaint." A first amended complaint must be retyped or rewritten in its entirety on the court-approved form and may not incorporate any part of the original Complaint by reference. Plaintiff may include only one claim per count.

If Plaintiff files a an amended complaint, Plaintiff must write short, plain statements telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name of the Defendant who violated the right; (3) exactly what that Defendant did or failed to do; (4) how the action or inaction of that Defendant is connected to the violation of Plaintiff's constitutional right; and (5) what specific injury Plaintiff suffered because of that Defendant's conduct. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).

Plaintiff must repeat this process for each person he names as a Defendant. If Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for failure to state a claim. Conclusory allegations that a Defendant or group of Defendants has violated a constitutional right are not acceptable and will be dismissed.

III. Motions

On October 1, 2013, Defendant filed a Motion to Stay Discovery. Because the Court has not yet completed statutory screening, the Court will deny the Motion as moot. If Plaintiff files an amended complaint, and the Court determines that Plaintiff's claims may proceed, the Court will then issue a scheduling order setting the time for the parties to conduct discovery.

On October 9, 2013, Plaintiff filed a Motion for Extension of Time to Serve Complaint (Doc. 5). Defendant filed a Response stating that the Motion should be denied as moot because Defendant has waived any defect with Plaintiff's attempted service of the Complaint. The Court will deny Plaintiff's Motion for Extension of Time as moot.

IV. Warnings

A. Address Changes

Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.

B. Copies

Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice to Plaintiff.

C. Possible Dismissal

If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court).

IT IS ORDERED:

(1) The Complaint (filed with the Notice of Removal at Doc. 1) is dismissed. Plaintiff has 30 days from the date this Order is filed to file a first amended complaint in compliance with this Order.

(2) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action without prejudice.

(3) Defendant's October 1, 2013 Motion to Stay Discovery (Doc. 3) is denied as moot.

(4) Plaintiff's Motion for Extension of Time to Serve Complaint (Doc. 5) is denied as moot.

(5) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.