Mincey v. Arpaio et al

Filing 11

ORDER granting in part and denying in part 10 Plaintiff's Motion for Extension of Time. Plaintiff is granted an additional 20 days from the original deadline set in the 4/6/12 Order 8 , in which to file a first amended complaint. If Plaintiff fails to comply, the Clerk of Court must enter a judgment of dismissal with prejudice that states that the dismissal may count as a strike under 28:1915(g). The Clerk of Court must mail Plaintiff a copy of his Complaint 1 . Signed by Judge G Murray Snow on 4/16/12.(TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Torrance Derrick Mincey,
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Plaintiff,
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vs.
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Joseph M. Arpaio, et al.,
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Defendants.
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No. CV 12-0303-PHX-GMS (LOA)
ORDER

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Plaintiff Torrance Derrick Mincey, who is confined in the Arizona State Prison

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

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42 U.S.C. § 1983. In an Order filed on April 6, 2012, the Court dismissed the Complaint

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with leave to file an amended complaint within 30 days. (Doc. 8.) On April 13, 2012,

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Plaintiff filed a motion for an extension of time in which to file an amended complaint,

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copies of his Complaint and filings from a state case, and asks that he not be assessed court

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costs. Plaintiff fails to indicate the reason for seeking an extension of time or how much

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additional time he requests. Nevertheless, the Court will grant him an additional 20 days to

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file a First Amended Complaint. A copy of Plaintiff’s Complaint will be sent to Plaintiff.

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The balance of the relief requested will be denied.

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vacated. Federal statutes impose a filing fee for any litigant to commence a civil case in

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Plaintiff in part appears to seek to have the assessment for the filing fee for this action

federal court. 28 U.S.C. § 1914. As the Court’s prior Order, and the court-approved form

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for a prisoner seeking leave to proceed in forma pauperis, informed Plaintiff, a prisoner who

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is granted leave to proceed in forma pauperis is statutorily required to pay the filing fee of

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$350.00. (Doc. 8, citing 28 U.S.C. § 1915(b)(1)). Plaintiff cites no authority, nor is the

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Court aware of any, that permits the Court to vacate the assessment of a filing fee.

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Accordingly, Plaintiff’s motion will be denied to the extent that he seeks to have the

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assessment for the filing fee vacated.

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Plaintiff also asks the Court to provide him a copy of his Complaint in this case and

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copies of documents from a state court case filed by him, which he seeks to assist in drafting

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an amended complaint. Plaintiff is reminded that a copy of the Complaint from this case will

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be forwarded to Plaintiff. However, Plaintiff’s request to have copies of documents from his

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state court case will be denied. Plaintiff must contact the state court, i.e., Maricopa County

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Superior Court, to obtain copies of those documents.1

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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.

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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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Address Changes

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In its prior Order, the Court cited information contained in state court minute orders,
some of which may be viewed on-line. However, Plaintiff’s filings in his special action and
any responses thereto, are not available on-line and federal courts do not possess or maintain
copies of state court filings.
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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 April 6, 2012 Order,

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the dismissal may count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915(g).

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Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil

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

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

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

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

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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 the April 6, 2012 Order and

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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)

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Plaintiff’s motion for an extension of time is granted in part and denied in

part. The motion is granted to the extent set forth below and otherwise denied. (Doc. 10.)
(2)

Plaintiff is granted an additional 20 days from the original deadline set in the

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April 6, 2012 Order, doc. 8, in which to file a first amended complaint in compliance with

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the April 6, 2012 Order, doc. 8.

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(3)

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

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JDDL-K

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.
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§ 1915(g).

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(4)

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DATED this 16th day of April, 2012.

The Clerk of Court must mail Plaintiff a copy of his Complaint, doc. 1.

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