Gamez v. Ryan et al

Filing 51

ORDER, striking the Third Amended Complaint and dismissing this action for lack of prosecution under Rule 41(b), Fed. R. Civ. P.; this is without prejudice to the right of counsel to file a new and separate action on behalf of the proposed new plaintiffs in this case, Gamez, and the proposed class; we note that proposed plaintiff, Arizona Center for Disability Law, may not proceed in forma pauperis. Signed by Judge Frederick J Martone on 3/21/12. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robert Carrasco Gamez, Jr.,
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Plaintiff,
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vs.
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Charles L. Ryan et al,

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Defendant.

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No. CV 10-2070-PHX-FJM
ORDER

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This action was reassigned to the undersigned on March 8, 2012. (Doc. 42). We
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reviewed the docket and discovered that the case was already 18 months old and yet had not
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been developed beyond efforts to file a complaint. It is a pro se prisoner civil rights action
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subject to the Prison Litigation Reform Act. The initial complaint was filed on September 27,
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2010. On January 26, 2011, the court allowed plaintiff to proceed in forma pauperis, screened
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the complaint under 28 U.S.C. §1915A, and dismissed it with leave to amend. (Doc. 15).
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Plaintiff filed a first amended complaint on March 22, 2011. On May 13, 2011, the court
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screened it and dismissed it again with leave to amend. (Doc. 20). On July 28, 2011, plaintiff
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filed a second amended complaint. The docket shows no activity until 6 months later when
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on February 24, 2012, the ACLU filed an appearance on behalf of plaintiff. (Doc. 29). Six
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days later, on March 1, 2012, the court dismissed the second amended complaint with leave
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to amend yet again. (Doc. 30). The court noted that counsel had now appeared and could
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cure plaintiff's pleading deficiencies. Order of Mar. 1, 2012 at 4. (Doc. 30).
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Instead, on March 6, 2012, counsel filed a "Third Amended Class Action Complaint
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for Injunctive and Declaratory Relief", 78 pages long, purporting to add 13 new inmate

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plaintiffs, the Arizona Center for Disability Law, and seeking class treatment. Because this

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attempt to expand the scope of the action was not within the contemplation of the court when

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a third amended complaint was allowed, the out-of-district judge assigned to the case ordered

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it reassigned to an in-district judge. (Doc. 42). We thus inherited it in this posture.

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The Third Amended Complaint would expand both the party structure and the claim

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structure of the case. It would go from a single prisoner's in forma pauperis claim to a

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system wide assault on the state's provision of medical, dental, mental health and custodial

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care to the entire prison population. This is far too much to hang on an 18 month old case

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in which no filing fee has been paid. Under the Civil Justice Reform Act, 28 U.S.C.

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§473(a)(2)(B), the presumptive pace of ordinary civil litigation is 18 months. And under

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LRCiv 16.2(b)(2), prisoner pro se cases are to be resolved even earlier. This is now

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impossible here.

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Plaintiff was never granted leave to file this multi-party, multi-claim class action. He

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was granted leave to conform his claim to the requirements of this court's form and

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instructions for pro se prisoner litigation. Order of Mar. 1, 2012 at 3-4. (Doc. 30). He has

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failed to do this.

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Accordingly, IT IS ORDERED STRIKING THE THIRD AMENDED COMPLAINT

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AND DISMISSING this action for lack of prosecution under Rule 41(b), Fed. R. Civ. P.

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This is without prejudice to the right of counsel to file a new and separate action on behalf

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of the proposed new plaintiffs in this case, Gamez, and the proposed class. We note that

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proposed plaintiff Arizona Center for Disability Law may not proceed in forma pauperis.

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See Rowland v. California Men's Colony, 506 U.S. 194, 211 (1993)(only natural persons may

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proceed in forma pauperis).

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DATED this 21st day of March, 2012.

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