Cloy v. Bouckuey et al

Filing 18

Order denying 12 MOTION to summons special master filed by Rickie Lee Cloy. Denying 17 MOTION to Stay filed by Rickie Lee Cloy. It is ORDERED that plaintiff now file, by 5/20/2013, a second amended complaint on this Court's § 1983 complaint form that corrects the pleading deficiencies noted in the Court's 16 Order. Signed by Magistrate Judge Katherine P. Nelson on 3/21/2013. copy of order and form mailed to plf. (sdb)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION RICKIE LEE CLOY, Plaintiff, v. TRACY BOUCKUEY, et al., Defendants. ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 12-00718-KD-N ORDER This action is before the Court on plaintiff’s motion (doc. 17) to stay this action to allow plaintiff time to “adequately prepare a proper 1983 [Complaint using the Court’s form].” A stay of this action would be inappropriate and, consequently, plaintiff’s motion to stay is hereby DENIED. The Court will, however, grant plaintiff additional time to comply with the Order entered on February 13, 2013 (doc. 16). Accordingly, it is ORDERED that plaintiff now file no later than May 20, 2013, a second amended complaint on this Court’s § 1983 complaint form that corrects the pleading deficiencies noted in the Court’s Order dated February 21, 2013 (doc. 16) and states a claim for a violation of his constitutional rights. As stated previously, plaintiff’s second amended complaint will supercede plaintiff’s prior complaints (docs. 1,4). Plaintiff, therefore, shall not rely on them. The Clerk is directed to send plaintiff a form for a complaint under § 1983. Failure to comply with this order within the prescribed time or to notify the Court of a change of address will result in the dismissal of this action without prejudice. And a failure to plead a second amended complaint that complies with Fed.R.Civ.P. 8(a), after being required to replead a complaint, may result in the dismissal of the action under Fed.R.Civ.P. 41(b) for failure to comply with the Court’s order. Pelletier v. Zweifel, 921 F.2d 1465, 1522 n. 103 (11th Cir. 1991), cert. denied, 502 U.S. 855 (1991). On January 2, 2013, plaintiff filed a “Petition to Summon a Special Master” (doc. 12) pursuant to § 16.8 of the Prison Litigation Reform Act. Upon consideration of this petition and all pertinent portions of the record, the Court finds that it has previously advised the plaintiff that he is not entitled to appointed counsel because he has not “demonstrated that his case present[s] exceptional circumstances warranting the appointment of counsel.” Doc. 10 at 1-2, citing Tipps v. Leonard, 2009 WL 1362831, *1 (5th Cir. May 15, 2009); Ulmer v. Chancellor, 691 F.2d 209, 212-13 (5th Cir. 1982). The circumstances warranting the appointment of a Special Master must be even more exceptional than that required for appointment of counsel in a case such as this one. It is, therefore, ORDERED that plaintiff’s petition (doc. 12) is hereby DENIED. DONE this 21st day of March, 2013. /s/Katherine P. Nelson KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE 2

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