Rigsby v. Arizona, State of et al

Filing 10

ORDER denying without prejudice 5 Plaintiff's Writ of Prohibition and Request for Appropriate Sanctions. Within 20 days from the filing date of this Order, Defendants must file a response to Plaintiff's Motion 7 . Within 10 days from the filing date of Defendant's response, Plaintiff may file a reply. Plaintiff's Motion to Extend Time 9 is granted. Plaintiff has 30 days from the time that the Court rules on his Motion to Vacate 7 within which to file a first amended complaint that complies with the Court's 9/8/11 Order 6 . If Plaintiff fails to comply, the Clerk of Court must enter a judgment of dismissal with prejudice. Signed by Judge David G Campbell on 11/1/11.(TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Raymond Earl Rigsby,
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Plaintiff,
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vs.
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State of Arizona, et al.,
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Defendants.
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No. CV 11-1696-PHX-DGC (ECV)
ORDER

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Pending before the Court in this removed action are Plaintiff’s “Writ Of Prohibition

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And Request For Appropriate Sanctions” (Doc. 5), “Motion To Vacate And Or Amend Order

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Of 09-08-2011 (With Affidavit)” (Doc. 7), and “Motion To Extend Time” (Doc. 9). The

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Court will deny Plaintiff’s “Writ Of Prohibition And Request For Appropriate Sanctions”

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without prejudice, will require the Defendants to file a response to Plaintiff’s “Motion To

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Vacate And Or Amend Order Of 09-08-2011 (With Affidavit),” and will grant Plaintiff’s

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“Motion To Extend Time.”

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I.

Procedural History

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U.S.C. § 1441(B)” (Doc. 1) of this case from the Superior Court of Maricopa County,

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Arizona. By order filed September 8, 2011 (Doc. 6), the Court dismissed Plaintiff’s

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Complaint (originally filed in the Maricopa County Superior Court and attached as

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Attachment 7 to Doc. 1) for failure to file on the court-approved form. Plaintiff was given

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30 days from the filing date of the order to file a first amended complaint in compliance with

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On August 26, 2011, Defendant Jan Brewer filed a “Notice Of Removal Under 28

the order.

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II.

Writ of Prohibition

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On September 2, 2011, Plaintiff filed a pleading entitled “Writ Of Prohibition And

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Request For Appropriate Sanctions” (Doc. 5), in which he petitions the Court for the issuance

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of a “Writ of Prohibition.” Plaintiff does not allege that he has served, or attempted to serve,

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a copy of this pleading on any of the named Defendants. Accordingly, the Court will deny

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the request for a “Writ of Prohibition” without prejudice.

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III.

Motion to Vacate and or Amend Order

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On September 16, 2011, Plaintiff filed a “Motion To Vacate And Or Amend Order

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Of 09-08-2011 (With Affidavit)” (Doc. 7), in which he moves the Court to “vacate and/or

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amend its Order of [September 8, 2011] dismissing the [C]omplaint,”and to “enter its Order

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striking and/or dismissing Defendant Jan Brewer’s Notice and/or Petition for Removal under

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28 U.S.C. § 1441(B) with prejudice.”

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In support of his Motion, Plaintiff alleges in part that “U.S.C. at 28 U.S.C. § 1446(e)

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states in material part: Notice of removal together with a copy of the petition and bond are

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filed in the superior court ‘and served upon the parties to the action.’” Plaintiff further

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alleges that he has “not been served with a copy of the Notice or petition” and that the

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Defendants’ failure to serve him “with a copy of the Notice or Petition for removal denies

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[P]laintiff due process and/or access to the court, and is sufficient to deprive this [C]ourt of

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jurisdiction subject matter.”

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Plaintiff appears to be referring to an outdated version of 28 U.S.C. § 1446(e). The

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current version applies solely to the removal of a criminal prosecution and provides the

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procedure for issuing a writ of habeas corpus and taking the defendant or defendants into

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federal custody. However, the Court notes that the current version of another subsection, 28

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U.S.C. § 1446(d), does apply to the removal of civil actions and provides that:

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Promptly after the filing of [a] notice of removal of a civil action the defendant
or defendants shall give written notice thereof to all adverse parties and shall
file a copy of the notice with the clerk of [the] State court, which shall effect
the removal and the State court shall proceed no further unless and until the
case is remanded.

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It is unclear from the “Notice Of Removal Under 28 U.S.C. § 1441(B)” (Doc. 1)

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JDDL

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(Notice of Removal) filed in the instant action if the Defendants complied with the

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requirement of 28 U.S.C. § 1446(d) to give a written notice to Plaintiff. Plaintiff alleges that

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they did not and has filed an “Affidavit” (Doc. 8) to that effect.

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The “Certificate Of Service” included with the Notice of Removal states in relevant
part that:

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The Notice of Electronic Filing was automatically sent to the following, who
is not a registered participant of the electronic court filing system:

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Raymond Earl Rigsby, #045300
ASPC-Tucson, Santa Rita Unit
P.O. Box 24406
Tucson, AZ 85734

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It is not readily apparent to the Court what is meant by “automatically sent.”

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Accordingly, because it is unclear to the Court if Defendants complied with the requirements

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of 28 U.S.C. § 1446 (d), the Court will require the Defendants to file a response to Plaintiff’s

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“Motion To Vacate And Or Amend Order Of 09-08-2011 (With Affidavit)” (Doc. 7) within

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20 days from the filing date of this order. Plaintiff will be given 10 days from the filing date

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of the response to file a reply if he so desires.

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IV.

Motion to Extend Time

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On October 11, 2011, Plaintiff filed a “Motion To Extend Time” (Doc. 9). In his

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Motion, Plaintiff moves the Court for an extension of time to comply with the Court’s

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September 8, 2011 Order (Doc. 6), which gave him 30 days from the filing date of the order

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to file a first amended complaint. Plaintiff asks that the time to file his first amended

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complaint be extended to 30 days from the time that the Court rules on his “Motion To

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Vacate And Or Amend Order Of 09-08-2011 (With Affidavit)” (Doc. 7). For good cause

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shown, the Court will grant Plaintiff’s Motion.

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V.

Warnings

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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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A.

Address Changes

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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B.

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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C.

Possible Dismissal

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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)

Plaintiff’s “Writ Of Prohibition And Request For Appropriate Sanctions”

(Doc. 5) is denied without prejudice.
(2)

Within 20 days from the filing date of this Order, Defendants must file a

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response to Plaintiff’s “Motion To Vacate And Or Amend Order Of 09-08-2011 (With

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Affidavit)” (Doc. 7).

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(3)

Within 10 days from the filing date of Defendant’s response, Plaintiff may file

a reply.
(4)

Plaintiff’s “Motion To Extend Time” (Doc. 9) is granted. Plaintiff has 30

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days from the time that the Court rules on his “Motion To Vacate And Or Amend Order Of

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09-08-2011 (With Affidavit)” (Doc. 7) within which to file a first amended complaint that

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complies with the Court’s September 8, 2011 Order (Doc. 6).

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(5)

If Plaintiff fails to timely file a first amended complaint, the Clerk of Court

must, without further notice, enter a judgment of dismissal of this action with prejudice.
DATED this 1st day of November, 2011.

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