Rooke v. Vail et al

Filing 18

ORDER Plaintiff's letter filed on 11/3/11 is construed as a motion for an extension of time to file a second amended complaint and is granted 17 . Plaintiff is granted an additional 45 days from the filing date of this Order to file a second amended complaint. If Plaintiff fails to comply, the Clerk of Court must enter a judgment of dismissal with prejudice that states that the dismissal may count as a strike under 28:1915(g). Signed by Judge Robert C Broomfield on 11/7/11. (TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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SEAN THOMAS ROOKE,
Plaintiff,

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vs.

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ELDON VAIL, et al.,

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Defendants.

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No. CV 11-0955-PHX-RCB (JRI)
ORDER

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Plaintiff Sean Thomas Rooke, a Washington inmate now confined in Stafford Creek

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Corrections Center in Aberdeen, Washington, filed a pro se civil rights Complaint pursuant

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to 42 U.S.C. § 1983 in the District Court for the Western District of Washington. That Court

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transferred the case to this District based on venue because Plaintiff’s claim concerned the

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loss of property while he was confined in the Red Rock Correctional Center (RRCC), a

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Corrections Corporation of America (CCA) facility, in Eloy, Arizona. This Court dismissed

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the Complaint for failure to state a claim with leave to amend. (Doc. 13.) Plaintiff filed a

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First Amended Complaint. (Doc. 15.) In an Order filed on October 4, 2011, the Court

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dismissed the First Amended Complaint with leave to amend within 30 days. (Doc. 16.)

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On November 3, 2011, Plaintiff sent a letter in which he seeks an extension of time

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in which to file a second amended complaint. (Doc. 17.) In his letter, Plaintiff states that he

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is in administrative segregation, from which he is scheduled to be released on November 28,

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2011, and then transferred to another facility. Plaintiff indicates that he lacks access to his

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property, where he has records relevant to his claims in this case, while he is in

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administrative segregation. The Court construes Plaintiff’s letter as a motion for extension

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of time, which will be granted to the extent stated below.

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Warnings

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A.

Release

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Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release.

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Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay

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the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result

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in dismissal of this action.

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B.

Address Changes

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Plaintiff must file and serve a notice of a change of address in accordance with Rule

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83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other

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relief with a notice of change of address. Failure to comply may result in dismissal of this

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action.

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C.

Copies

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Plaintiff must submit an additional copy of every filing for use by the Court. See

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LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice

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to Plaintiff.

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D.

Possible “Strike”

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Because the Complaint and First Amended Complaint have been dismissed for failure

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to state a claim, if Plaintiff fails to file an amended complaint correcting the deficiencies

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identified in the October 4, 2011 Order, the dismissal may count as a “strike” under the “3-

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strikes” provision of 28 U.S.C. § 1915(g). Under the 3-strikes provision, a prisoner may not

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bring a civil action or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915 “if

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the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility,

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brought an action or appeal in a court of the United States that was dismissed on the grounds

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that it is frivolous, malicious, or fails to state a claim upon which relief may be granted,

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unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C.
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§ 1915(g).

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E.

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If Plaintiff fails to timely comply with every provision of this Order, including these

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warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at

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1260-61 (a district court may dismiss an action for failure to comply with any order of the

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Court).

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IT IS ORDERED:

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(1)

Possible Dismissal

Plaintiff’s letter filed on November 3, 2011 is construed as a motion for an

extension of time within which to file a second amended complaint. (Doc. 17.)
(2)

Plaintiff’s motion for an extension of time is granted, doc. 17, and Plaintiff is

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granted an additional 45 days from the filing date of this Order in which to file a second

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amended complaint in compliance with the October 4, 2011 Order, doc. 16.

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(3)

If Plaintiff fails to file an amended complaint within the extension granted

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herein, the Clerk of Court must, without further notice, enter a judgment of dismissal of this

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action with prejudice that states that the dismissal may count as a “strike” under 28 U.S.C.

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§ 1915(g).

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DATED this 7th day of November, 2011.

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