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)

Download PDF
1 WO SC 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 George Wilson Overturf, 9 Plaintiff, 10 vs. 11 Janice K. Brewer, et al., 12 Defendants. 13 ) ) ) ) ) ) ) ) ) ) No. CV 11-1856-PHX-GMS (DKD) ORDER 14 Plaintiff George Wilson Overturf, who is confined in the Arizona State Prison 15 Complex, Central Unit, in Florence, Arizona, filed a pro se civil rights Complaint pursuant 16 to 42 U.S.C. § 1983, which the Court dismissed with leave to amend. (Doc. 1, 7.) Plaintiff 17 filed a First Amended Complaint and a motion for appointment of counsel. (Doc. 15, 16.) 18 The Court dismissed the First Amended Complaint with leave to amend and denied the 19 motion to appoint counsel. (Doc. 17.) The Court stated, however, that it would request 20 counsel to represent Plaintiff pro bono and to file a notice of appearance within 30 days.1 21 (Id.) Plaintiff filed a motion to extend the deadline for filing a second amended complaint 22 until April 16, 2012. (Doc. 22.) 23 In an Order filed on April 11, 2012, the Court granted Plaintiff 30 days in which to 24 file a second amended complaint. (Doc. 24.) The day after that Order was filed, and before 25 Plaintiff received a copy of that Order, Plaintiff filed two motions to compel discovery and 26 another motion for extension of time in which to file a second amended complaint. For the 27 28 1 To date, those efforts have been unsuccessful. 1 reasons discussed in the April 11 Order, Plaintiff’s motions to compel discovery will be 2 denied as premature. 3 Plaintiff also seeks an extension until June 16, 2012 in which to file a second amended 4 complaint. (Doc. 27.) Plaintiff primarily seeks the extension because he has not received 5 responses to his discovery requests. However, unless and until Plaintiff files a second 6 amended complaint that states a claim against one or more defendants, and the Court requires 7 a response thereto, discovery is premature. Plaintiff otherwise seeks an extension because 8 he has not yet received new glasses, which would better enable him to read the rules of 9 procedure. Plaintiff is referred to the Instructions for completing the court-approved form 10 complaint and this Court’s February 16, 2012 Order as guidance in preparing a second 11 amended complaint. Specifically, Plaintiff is referred to the standards to state the type of 12 claims that Plaintiff seeks to present, which is discussed in that Order. Finally, Plaintiff also 13 seeks the name of potential pro bono counsel; that request will be denied because, to date, 14 no attorney has agreed to represent Plaintiff in this action pro bono. Plaintiff’s motion for 15 an extension until June 16, 2012 will be denied. 16 Warnings 17 A. Release 18 Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release. 19 Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay 20 the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result 21 in dismissal of this action. 22 B. Address Changes 23 Plaintiff must file and serve a notice of a change of address in accordance with Rule 24 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 25 relief with a notice of change of address. Failure to comply may result in dismissal of this 26 action. 27 C. Copies 28 Plaintiff must submit an additional copy of every filing for use by the Court. See -2- 1 LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice 2 to Plaintiff. 3 D. Possible “Strike” 4 Because the Complaint and First Amended Complaint have been dismissed for failure 5 to state a claim, if Plaintiff fails to file an amended complaint correcting the deficiencies 6 identified in the February 16, 2012 Order, the dismissal may count as a “strike” under the “3- 7 strikes” provision of 28 U.S.C. § 1915(g). Under the 3-strikes provision, a prisoner may not 8 bring a civil action or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915 “if 9 the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, 10 brought an action or appeal in a court of the United States that was dismissed on the grounds 11 that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, 12 unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. 13 § 1915(g). 14 E. Possible Dismissal 15 If Plaintiff fails to timely comply with every provision of the February 16, 2012 Order 16 or this Order, including these warnings, the Court may dismiss this action without further 17 notice. See Ferdik, 963 F.2d at 1260-61 (a district court may dismiss an action for failure to 18 comply with any order of the Court). 19 IT IS ORDERED: 20 (1) Plaintiff’s motions to compel discovery are denied. (Doc. 25, 26.) 21 (2) Plaintiff’s motion for an extension of time to file an amended complaint is 22 23 denied. (Doc. 27.) DATED this 16th day of April, 2012. 24 25 26 27 28 -3-

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?