Overturf v. Brewer et al

Filing 11

ORDER granting in part and denying in part 9 Motion for Extension of Time. Plaintiff is granted an additional 30 days from the filing date of this Order in which to file a first amended complaint in compliance with the November 7, 2011 Order, doc . 7. If Plaintiff fails to file an amended complaint within the extension granted herein, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action with prejudice that states that the dismissal may count as a strike under 28 U.S.C. § 1915(g). Plaintiff's motion for appointment of counsel is denied. (Doc. 10.) (See document for details). Signed by Judge G Murray Snow on 11/28/11.(LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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George Wilson Overturf,
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Plaintiff,
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vs.
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Janice K. Brewer, et al.,
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Defendants.
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No. CV 11-1856-PHX-GMS (DKD)
ORDER

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Plaintiff George Wilson Overturf, who is confined in the Arizona State Prison

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Complex, Central Unit, in Florence, Arizona, filed a pro se civil rights Complaint pursuant

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to 42 U.S.C. § 1983 with (a) an incomplete Application to Proceed In Forma Pauperis and,

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(b) a motion to submit the complete in forma pauperis Application with a completed

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Application. (Doc. 1, 2, 4, 5.) In an Order filed on November 7, 2011, the Court denied (a),

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the incomplete in forma pauperis application, but granted (b), the motion to submit a

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completed application and the completed application. (Doc. 7.) The Court also dismissed

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the Complaint with leave to amend within 30 days. (Id.)

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to proceed in forma pauperis and an amended complaint. (Doc. 9.) To the extent that

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Plaintiff seeks an extension of time to file an in forma pauperis application his motion will

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be denied because the Court has already granted Plaintiff leave to proceed in forma pauperis.

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(Doc. 7.) Plaintiff also seeks an extension until February 5, 2012 in which to file an amended

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complaint. The Court will grant Plaintiff an additional 30 days in which to file an amended

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Plaintiff has filed a motion for an extension of time to submit a completed application

complaint. The Court’s prior Order described the standard to state the types of claims that

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Plaintiff wishes to bring. (Doc. 7 at 5-11.) Plaintiff is reminded that he need not and should

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not include legal authority or argument in an amended complaint. Rather, he should allege

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the facts that he believes supports that his constitutional or federal statutory rights have been

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violated.

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Plaintiff has also filed a motion for the appointment of counsel. (Doc. 10.) Plaintiff

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seeks the appointment of counsel because of his imprisonment and limited access to legal

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resources will make it difficult for him to litigate this case and he is indigent. Counsel is only

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appointed in a civil rights action in “exceptional circumstances.” Agyeman v. Corrections

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Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004); Wilborn v. Escalderon, 789 F.2d

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1328, 1331 (9th Cir. 1986); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). “A

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finding of exceptional circumstances requires an evaluation of both ‘the likelihood of success

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on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the

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complexity of the legal issues involved.’” Wilborn, 789 F.2d at 1331; see Agyeman, 390

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F.3d at 1103; Terrell, 935 F.2d at 1017.

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circumstances warranting the appointment of counsel. Accordingly, Plaintiff’s request for

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the appointment of counsel will be denied.

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Warnings

This case does not present exceptional

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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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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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B.

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Address Changes

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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 has been dismissed for failure to state a claim, if Plaintiff fails

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to file an amended complaint correcting the deficiencies identified in the November 7, 2011

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Order, the dismissal may count as a “strike” under the “3-strikes” provision of 28 U.S.C.

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§ 1915(g). Under the 3-strikes provision, a prisoner may not bring a civil action or appeal

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a civil judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more

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prior occasions, while incarcerated or detained in any facility, brought an action or appeal

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in a court of the United States that was dismissed on the grounds that it is frivolous,

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malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is

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

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E.

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 v. Bonzelet,

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963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to

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comply with any order of the Court).

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IT IS ORDERED:

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(1)

Plaintiff’s motion for an extension to file an in forma pauperis application and

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amended complaint is granted in part and denied in part. (Doc. 9.) The motion is granted

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to the extent set forth below and otherwise denied. (Doc. 9.)
(2)

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Plaintiff is granted an additional 30 days from the filing date of this Order in

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which to file a first amended complaint in compliance with the November 7, 2011 Order,

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doc. 7.

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(3)

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

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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(4)

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DATED this 28th day of November, 2011.

Plaintiff’s motion for appointment of counsel is denied. (Doc. 10.)

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