United States District Court, D. Arizona
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 ...