Overturf v. Brewer et al

Filing 28

ORDER denying 27 Motion for Extension of Time to Amend; denying 25 Motion to Compel; denying 26 Motion to Compel. (See document for full details). Signed by Judge G Murray Snow on 4/16/12.(LAD)

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WO

SC

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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, which the Court dismissed with leave to amend. (Doc. 1, 7.) Plaintiff

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filed a First Amended Complaint and a motion for appointment of counsel. (Doc. 15, 16.)

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The Court dismissed the First Amended Complaint with leave to amend and denied the

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motion to appoint counsel. (Doc. 17.) The Court stated, however, that it would request

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counsel to represent Plaintiff pro bono and to file a notice of appearance within 30 days.1

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(Id.) Plaintiff filed a motion to extend the deadline for filing a second amended complaint

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until April 16, 2012. (Doc. 22.)

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In an Order filed on April 11, 2012, the Court granted Plaintiff 30 days in which to

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file a second amended complaint. (Doc. 24.) The day after that Order was filed, and before

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Plaintiff received a copy of that Order, Plaintiff filed two motions to compel discovery and

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another motion for extension of time in which to file a second amended complaint. For the

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To date, those efforts have been unsuccessful.

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reasons discussed in the April 11 Order, Plaintiff’s motions to compel discovery will be

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denied as premature.

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Plaintiff also seeks an extension until June 16, 2012 in which to file a second amended

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complaint. (Doc. 27.) Plaintiff primarily seeks the extension because he has not received

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responses to his discovery requests. However, unless and until Plaintiff files a second

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amended complaint that states a claim against one or more defendants, and the Court requires

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a response thereto, discovery is premature. Plaintiff otherwise seeks an extension because

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he has not yet received new glasses, which would better enable him to read the rules of

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procedure. Plaintiff is referred to the Instructions for completing the court-approved form

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complaint and this Court’s February 16, 2012 Order as guidance in preparing a second

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amended complaint. Specifically, Plaintiff is referred to the standards to state the type of

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claims that Plaintiff seeks to present, which is discussed in that Order. Finally, Plaintiff also

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seeks the name of potential pro bono counsel; that request will be denied because, to date,

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no attorney has agreed to represent Plaintiff in this action pro bono. Plaintiff’s motion for

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an extension until June 16, 2012 will be denied.

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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 February 16, 2012 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.

Possible Dismissal

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If Plaintiff fails to timely comply with every provision of the February 16, 2012 Order

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

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notice. See Ferdik, 963 F.2d at 1260-61 (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 motions to compel discovery are denied. (Doc. 25, 26.)

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(2)

Plaintiff’s motion for an extension of time to file an amended complaint is

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denied. (Doc. 27.)
DATED this 16th day of April, 2012.

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