Benitez v. Arpaio et al

Filing 11

ORDER that Plaintiff's 10 Motion for Extension of Time is granted to the extent that Plaintiff has an additional 45 days from the filing date of this Order in which to file a second amended complaint in compliance with the July 9, 2012, 9 O rder. If Plaintiff fails to comply, 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).Signed by Senior Judge Robert C Broomfield on 8/8/2012.(LFIG)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10

Sergio Cortez Benitez,
Plaintiff,

11
12

vs.

13

Maricopa County, et al.,

14

Defendants.

15

)
)
)
)
)
)
)
)
)
)
)

No. CV 12-0560-PHX-RCB (JFM)
ORDER

16

Plaintiff Sergio Cortez Benitez, who is confined in the Fourth Avenue Jail in Phoenix,

17

Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983, which the Court

18

dismissed for failure to state a claim with leave to amend. Plaintiff filed a First Amended

19

Complaint. (Doc. 7.) In a July 9, 2012 Order, the Court dismissed the First Amended

20

Complaint for failure to state a claim with leave to amend. (Doc. 9.) . On July 30, 2012,

21

Plaintiff filed a motion for an extension of time within which to file a second amended

22

complaint. (Doc. 10.)

23
24

lack of access to legal resources and difficulties in obtaining copies or, alternatively, to

25

attempt to obtain counsel. Plaintiff has not set forth any facts to support that he has been

26

prevented from timely filing an amended complaint. Moreover, the Court informed Plaintiff

27

in prior orders of the standard to state the type of claims for which he seeks relief. Therefore,

28
JDDL-K

Plaintiff seeks a 90-day extension of time to file a second amended complaint due to

the Court will grant Plaintiff only an additional 45 days in which to file a second amended

1

complaint.

2

Warnings

3

A.

Release

4

Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release.

5

Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay

6

the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result

7

in dismissal of this action.

8

B.

Address Changes

9

Plaintiff must file and serve a notice of a change of address in accordance with Rule

10

83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other

11

relief with a notice of change of address. Failure to comply may result in dismissal of this

12

action.

13

C.

Copies

14

Plaintiff must submit an additional copy of every filing for use by the Court. See

15

LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice

16

to Plaintiff.

17

D.

Possible “Strike”

18

Because the First Amended Complaint has been dismissed for failure to state a claim,

19

if Plaintiff fails to file a second amended complaint correcting the deficiencies identified in

20

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

21

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

22

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

23

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

24

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

25

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

26

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

27
28
JDDL-K

E.

Possible Dismissal

If Plaintiff fails to timely comply with every provision of this Order, including these
-2-

1

warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at

2

1260-61 (a district court may dismiss an action for failure to comply with any order of the

3

Court).

4

IT IS ORDERED:

5

(1)

Plaintiff’s motion for an extension of time is granted to the extent set forth

6

below. (Doc. 10.)

7

(2)

Plaintiff is granted an additional 45 days from the filing date of this Order in

8

which to file a second amended complaint in compliance with the July 9, 2012 Order, doc.

9

9.

10

(3)

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

11

herein, the Clerk of Court must, without further notice, enter a judgment of dismissal of this

12

action with prejudice that states that the dismissal may count as a “strike” under 28 U.S.C.

13

§ 1915(g).

14

DATED this 8th day of August, 2012.

15
16
17
18
19
20
21
22
23
24
25
26
27
28
JDDL-K

-3-