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Gutierrez v. Ryan

United States District Court, D. Arizona

November 21, 2019

Jesus A. Gutierrez, Plaintiff,
v.
Charles L. Ryan, et al., Defendants.

          ORDER

          Michael T. Liburdi United Stales District Judge

         On March 25, 2019, Plaintiff Jesus A. Gutierrez, who is confined in the Arizona State Prison Complex-Florence, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983, and, after being directed to do so, a complete Application to Proceed In Forma Pauperis. By Order dated July 15, 2019, the Court granted the Application to Proceed, but dismissed the Complaint because Plaintiff had failed to state a claim. Plaintiff was provided with 30 days in which to file an amended complaint that cured the deficiencies identified in the Order.

         On August 9, 2019, Plaintiff sought an extension of time in which to file an amended complaint. By Order dated September 13, 2019, the Court granted the Motion, and provided Plaintiff with 30 days in which to file an amended complaint that cured the deficiencies identified in the July 15, 2019 Order.

         Plaintiff has now filed a Second Motion for Extension of Time (Doc. 13) in which he seeks a further 30-day extension of time in which to submit his amended complaint. In its discretion, the Court will grant the Motion for Extension of Time. Plaintiff shall have 30 days from the date of this Order in which to submit a first amended complaint that cures the deficiencies identified in the Court's July 15 Order.

         I. Warnings

         A. Release

         If Plaintiff is released while this case remains pending, and the filing fee has not been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court that he intends to pay the unpaid balance of his filing fee within 120 days of his release or (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may result in dismissal of this action.

         B. Address Changes

         If Plaintiff's 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.

         C. Possible “Strike”

         Because the Complaint has been dismissed for failure to state a claim, if Plaintiff fails to file a first amended complaint correcting the deficiencies identified in this Order, the dismissal may count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915(g). Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).

         D. 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, 963 F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any order of the Court).

         IT IS ORDERED:

         (1) Plaintiffs Motion for Extension of Time (Doc. 13) is granted. 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 a first amended complaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action with prejudice that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915(g) and deny any pending unrelated motions as moot.

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

         Instructions for a Prisoner Filing a Civil Rights Complaint in the United States ...


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