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)

Download PDF
1 2 RP WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Raymond Earl Rigsby, 9 Plaintiff, 10 vs. 11 State of Arizona, et al., 12 Defendants. 13 ) ) ) ) ) ) ) ) ) ) No. CV 11-1696-PHX-DGC (ECV) ORDER 14 Pending before the Court in this removed action are Plaintiff’s “Writ Of Prohibition 15 And Request For Appropriate Sanctions” (Doc. 5), “Motion To Vacate And Or Amend Order 16 Of 09-08-2011 (With Affidavit)” (Doc. 7), and “Motion To Extend Time” (Doc. 9). The 17 Court will deny Plaintiff’s “Writ Of Prohibition And Request For Appropriate Sanctions” 18 without prejudice, will require the Defendants to file a response to Plaintiff’s “Motion To 19 Vacate And Or Amend Order Of 09-08-2011 (With Affidavit),” and will grant Plaintiff’s 20 “Motion To Extend Time.” 21 I. Procedural History 22 23 U.S.C. § 1441(B)” (Doc. 1) of this case from the Superior Court of Maricopa County, 24 Arizona. By order filed September 8, 2011 (Doc. 6), the Court dismissed Plaintiff’s 25 Complaint (originally filed in the Maricopa County Superior Court and attached as 26 Attachment 7 to Doc. 1) for failure to file on the court-approved form. Plaintiff was given 27 30 days from the filing date of the order to file a first amended complaint in compliance with 28 JDDL On August 26, 2011, Defendant Jan Brewer filed a “Notice Of Removal Under 28 the order. 1 II. Writ of Prohibition 2 On September 2, 2011, Plaintiff filed a pleading entitled “Writ Of Prohibition And 3 Request For Appropriate Sanctions” (Doc. 5), in which he petitions the Court for the issuance 4 of a “Writ of Prohibition.” Plaintiff does not allege that he has served, or attempted to serve, 5 a copy of this pleading on any of the named Defendants. Accordingly, the Court will deny 6 the request for a “Writ of Prohibition” without prejudice. 7 III. Motion to Vacate and or Amend Order 8 On September 16, 2011, Plaintiff filed a “Motion To Vacate And Or Amend Order 9 Of 09-08-2011 (With Affidavit)” (Doc. 7), in which he moves the Court to “vacate and/or 10 amend its Order of [September 8, 2011] dismissing the [C]omplaint,”and to “enter its Order 11 striking and/or dismissing Defendant Jan Brewer’s Notice and/or Petition for Removal under 12 28 U.S.C. § 1441(B) with prejudice.” 13 In support of his Motion, Plaintiff alleges in part that “U.S.C. at 28 U.S.C. § 1446(e) 14 states in material part: Notice of removal together with a copy of the petition and bond are 15 filed in the superior court ‘and served upon the parties to the action.’” Plaintiff further 16 alleges that he has “not been served with a copy of the Notice or petition” and that the 17 Defendants’ failure to serve him “with a copy of the Notice or Petition for removal denies 18 [P]laintiff due process and/or access to the court, and is sufficient to deprive this [C]ourt of 19 jurisdiction subject matter.” 20 Plaintiff appears to be referring to an outdated version of 28 U.S.C. § 1446(e). The 21 current version applies solely to the removal of a criminal prosecution and provides the 22 procedure for issuing a writ of habeas corpus and taking the defendant or defendants into 23 federal custody. However, the Court notes that the current version of another subsection, 28 24 U.S.C. § 1446(d), does apply to the removal of civil actions and provides that: 27 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. 28 It is unclear from the “Notice Of Removal Under 28 U.S.C. § 1441(B)” (Doc. 1) 25 26 JDDL -2- 1 (Notice of Removal) filed in the instant action if the Defendants complied with the 2 requirement of 28 U.S.C. § 1446(d) to give a written notice to Plaintiff. Plaintiff alleges that 3 they did not and has filed an “Affidavit” (Doc. 8) to that effect. 4 5 The “Certificate Of Service” included with the Notice of Removal states in relevant part that: 6 The Notice of Electronic Filing was automatically sent to the following, who is not a registered participant of the electronic court filing system: 7 Raymond Earl Rigsby, #045300 ASPC-Tucson, Santa Rita Unit P.O. Box 24406 Tucson, AZ 85734 8 9 10 It is not readily apparent to the Court what is meant by “automatically sent.” 11 Accordingly, because it is unclear to the Court if Defendants complied with the requirements 12 of 28 U.S.C. § 1446 (d), the Court will require the Defendants to file a response to Plaintiff’s 13 “Motion To Vacate And Or Amend Order Of 09-08-2011 (With Affidavit)” (Doc. 7) within 14 20 days from the filing date of this order. Plaintiff will be given 10 days from the filing date 15 of the response to file a reply if he so desires. 16 IV. Motion to Extend Time 17 On October 11, 2011, Plaintiff filed a “Motion To Extend Time” (Doc. 9). In his 18 Motion, Plaintiff moves the Court for an extension of time to comply with the Court’s 19 September 8, 2011 Order (Doc. 6), which gave him 30 days from the filing date of the order 20 to file a first amended complaint. Plaintiff asks that the time to file his first amended 21 complaint be extended to 30 days from the time that the Court rules on his “Motion To 22 Vacate And Or Amend Order Of 09-08-2011 (With Affidavit)” (Doc. 7). For good cause 23 shown, the Court will grant Plaintiff’s Motion. 24 V. Warnings 25 26 Plaintiff must file and serve a notice of a change of address in accordance with Rule 27 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 28 JDDL A. Address Changes relief with a notice of change of address. Failure to comply may result in dismissal of this -3- 1 action. 2 B. Copies 3 Plaintiff must submit an additional copy of every filing for use by the Court. See 4 LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice 5 to Plaintiff. 6 C. Possible Dismissal 7 If Plaintiff fails to timely comply with every provision of this Order, including these 8 warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at 9 1260-61 (a district court may dismiss an action for failure to comply with any order of the 10 Court). 11 IT IS ORDERED: 12 13 14 (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 15 response to Plaintiff’s “Motion To Vacate And Or Amend Order Of 09-08-2011 (With 16 Affidavit)” (Doc. 7). 17 18 19 (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 20 days from the time that the Court rules on his “Motion To Vacate And Or Amend Order Of 21 09-08-2011 (With Affidavit)” (Doc. 7) within which to file a first amended complaint that 22 complies with the Court’s September 8, 2011 Order (Doc. 6). 23 24 25 (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. 26 27 28 JDDL -4-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?