Rigsby v. Arizona, State of et al

Filing 24

ORDER granting in part 23 Plaintiff's Motion for Extension of Time; the Court will grant Plaintiff a 30-day (rather than 45-day) extension of time. Plaintiff has 30 days from the date this Order is filed to file a first amended complaint. If Plaintiff fails to comply, the Clerk of Court must enter a judgment of dismissal without prejudice. Signed by Judge David G Campbell on 3/6/12.(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,
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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I.

Procedural History

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On June 27, 2011, Plaintiff Raymond Earl Rigsby, who is confined in the Arizona

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State Prison Complex-Yuma in San Luis, Arizona, filed a Complaint in the Superior Court

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of Maricopa County, Arizona. On August 26, 2011, Defendant Jan Brewer filed a Notice of

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Removal and removed the case to this Court. On September 2, 2011, Plaintiff filed a

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document entitled “Writ of Prohibition and Request for Appropriate Sanctions,” in which he

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requested that the Court issue a “Writ of Prohibition.”

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because Plaintiff, in his Complaint, raised claims for violations of his constitutional rights

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under 42 U.S.C. § 1983. The Court dismissed Plaintiff’s Complaint, without prejudice,

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because Plaintiff had failed to file his Complaint on a court-approved form, as required by

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Local Rule of Civil Procedure 3.4. The Court gave Plaintiff 30 days to file an amended

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JDDL

In a September 8, 2011 Order, the Court concluded that removal was appropriate

complaint on a court-approved form.

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On September 16, 2011, Plaintiff filed a “Motion to Vacate and or Amended Order

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of 09-08-2011 (with Affidavit).” In his Motion to Vacate, Plaintiff requested that the Court

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vacate or amend the September 2, 2011 Order and enter an order striking or dismissing the

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Notice of Removal. On October 11, 2011, Plaintiff filed a Motion to Extend Time,

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requesting that the Court grant him an extension of time to file his first amended complaint

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30 days after the Court ruled on his Motion to Vacate.

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In a November 1, 2011 Order, the Court denied without prejudice the September 2nd

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request for a “Writ of Prohibition,” granted the Motion to Extend Time, gave Defendant 20

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days to file a response to the Motion to Vacate, and gave Plaintiff 10 days after the response

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was filed to file a reply. The Court also allowed Plaintiff 30 days after the Court ruled on the

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Motion to Vacate to file his first amended complaint.

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On November 8, 2011, Defendant filed her Response. On November 18, 2011,

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Plaintiff filed his Reply. On January 9, 2012, Plaintiff filed a “Petition for Writ of

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Prohibition.”

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In a January 31, 2012 Order, the Court denied Plaintiff’s Motion to Vacate and

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Plaintiff’s Petition for Writ of Prohibition. The Court gave Plaintiff 30 days from the date

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of this Order to file his first amended complaint.

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On February 13, 2012, Plaintiff file a Notice of Change of Judge, which the Court

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denied in a February 23, 2012 Order. On February 16, 2012, he filed a Notice of Appeal

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from the January 31st Order. On February 27, 2012, Plaintiff filed a Motion for Extension

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of Time (Doc. 23).

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II.

Jurisdiction–Notice of Appeal

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jurisdiction over those aspects of the case involved in the appeal, the district court’s

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jurisdiction is not affected when a litigant files a notice of appeal from an unappealable order.

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Estate of Conners v. O’Connor, 6 F.3d 656, 658 (9th Cir. 1993). “When a Notice of Appeal

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is defective in that it refers to a non-appealable interlocutory order, it does not transfer

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Although the filing of a notice of appeal generally divests the district court of

jurisdiction to the appellate court, and so the ordinary rule that the district court cannot act
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until the mandate has issued on the appeal does not apply.” Nascimento v. Dummer, 508

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F.3d 905, 908 (9th Cir. 2007). In such a case, the district court “may disregard the purported

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notice of appeal and proceed with the case, knowing that it has not been deprived of

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jurisdiction.” Ruby v. Secretary of the United States Navy, 365 F.2d 385, 389 (9th Cir.

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1966).

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In the Court’s January 31st Order, the Court denied Plaintiff’s request to remand the

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case back to state court. The Order is not an appealable final order under 28 U.S.C. § 1291.

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Caterpillar Inc v. Lewis, 519 U.S. 61, 74 (1996). The Order is not an interlocutory order

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generally appealable under 28 U.S.C. § 1292(a), and the Court did not provide the statement

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necessary to make the Order an interlocutory order appealable under 28 U.S.C. § 1292(b).

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Because Plaintiff’s February 16th Notice of Appeal refers to a non-appealable interlocutory

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order, Plaintiff’s Notice of Appeal did not divest the Court of jurisdiction.

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III.

Pending Motion

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In his Motion for Extension of Time, Plaintiff seeks a 45-day extension of time to file

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his first amended complaint. The Court, in its discretion, will partially grant the Motion.

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The Court finds Plaintiff’s request for a 45-day extension to be unreasonably long. Plaintiff

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has been on notice since the Court issued its September 8, 2011 Order that he needed to file

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an amended complaint on a court-approved form. The Court, therefore, will grant Plaintiff

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an additional 30 days to file his first amended complaint.

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IV.

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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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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A.

Address Changes

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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.

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If Plaintiff fails to timely comply with every provision of the September 8, 2011 Order

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and this Order, including these warnings, the Court may dismiss this action without further

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notice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may

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dismiss an action for failure to comply with any order of the Court).

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Possible Dismissal

IT IS ORDERED:
(1)

Plaintiff’s Motion for Extension of Time (Doc. 23) is granted in part; the

Court will grant Plaintiff a 30-day (rather than 45-day) extension of time.
(2)

Plaintiff has 30 days from the date this Order is filed to file a first amended

complaint in compliance with the September 8, 2011 Order and this Order.
(3)

If Plaintiff fails to file an amended complaint within 30 days, the Clerk of

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Court must, without further notice, enter a judgment of dismissal of this action without

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prejudice.

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DATED this 6th day of March, 2012.

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