Mendiola v. Arpaio

Filing 10

ORDER that within 30 days of the date this Order is filed, Plaintiff must file a complete and signed Certificate, using the Certificate form provided with this Order, certifying that Plaintiff's signature on the Certificate shall serve as an original signature on his First Amended Complaint for the purposes Rule 3.4 of the Local Rules of Civil Procedure and Rule 11 of the Federal Rules of Civil Procedure. If Plaintiff fails to file, within 30 days, a completed and signed Certificate on the form provided with this Order, the Clerk of Court must strike Plaintiff's First Amended Complaint and enter a judgment of dismissal of this action, with prejudice and without further notice, that states that the dismissal counts as a "strike" under 28 U.S.C. § 1915(g). Signed by Senior Judge Robert C Broomfield on 5/30/12. (DMT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Daniel Mendiola,
Plaintiff,

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vs.

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Joseph M. Arpaio,
Defendant.

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No. CV 12-654-PHX-RCB (ECV)
ORDER

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On March 27, 2012, Plaintiff Daniel Mendiola, who is confined in the Maricopa

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County Fourth Avenue Jail, filed a pro se civil rights Complaint pursuant to 42 U.S.C.

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§ 1983 and an Application to Proceed In Forma Pauperis. In an April 26, 2012 Order, the

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Court granted the Application to Proceed and dismissed the Complaint because Plaintiff had

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failed to state a claim upon which relief could be granted. The Court gave Plaintiff 30 days

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to file an amended complaint that cured the deficiencies identified in the Order.
On May 8, 2012, Plaintiff filed a First Amended Complaint (Doc. 9).

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I.

First Amended Complaint is not signed

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All pleadings must be signed by the party if the party is not represented by an

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attorney. Fed. R. Civ. P. 11(a) and LRCiv 3.4, 7.1(b)(1). An unsigned pleading must be

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stricken unless omission of the signature is corrected promptly after being called to the

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attention of the party. Fed. R. Civ. P. 11(a).

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Plaintiff’s First Amended Complaint is unsigned. Therefore, Plaintiff will be

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permitted 30 days from the filing date of this Order to submit a completed and signed

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Certificate, using the Certificate form included with this Order, certifying that Plaintiff’s

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signature on the Certificate shall serve as an original signature on his First Amended

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Complaint for the purposes of Rule 3.4 of the Local Rules of Civil Procedure and Rule 11

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of the Federal Rules of Civil Procedure.

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II.

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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Because the Complaint was dismissed for failure to state a claim, if Plaintiff fails to

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comply with this Order, the Court will strike the First Amended Complaint and will dismiss

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the case for failure to file an amended complaint correcting the deficiencies identified in the

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Court’s April 26, 2012 Order. The dismissal will count as a “strike” under the “3-strikes”

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provision of 28 U.S.C. § 1915(g). Under the 3-strikes provision, a prisoner may not bring

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a civil action or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915 “if the

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D.

Possible “Strike”

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.

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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. Ferdik v. Bonzelet, 963

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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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Possible Dismissal

IT IS ORDERED:
(1)

Within 30 days of the date this Order is filed, Plaintiff must file a complete and

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signed Certificate, using the Certificate form provided with this Order, certifying that

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Plaintiff’s signature on the Certificate shall serve as an original signature on his First

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Amended Complaint for the purposes Rule 3.4 of the Local Rules of Civil Procedure and

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Rule 11 of the Federal Rules of Civil Procedure.

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(2)

If Plaintiff fails to file, within 30 days, a completed and signed Certificate on

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the form provided with this Order, the Clerk of Court must strike Plaintiff’s First Amended

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Complaint and enter a judgment of dismissal of this action, with prejudice and without

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further notice, that states that the dismissal counts as a “strike” under 28 U.S.C. § 1915(g)

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(3)

The Clerk of Court must mail Plaintiff a Certificate form.

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Dated this 30th day of May, 2012.

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______________________________
______________________________
______________________________
(Your Name and Address)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

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Daniel Mendiola,

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Plaintiff,

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vs.

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Joseph M. Arpaio,

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Defendant.

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No. CV12-654-PHX-RCB (ECV)
CERTIFICATE

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I, Daniel Mendiola, hereby certify:

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I have read the pro se First Amended Complaint (Doc. 9) filed by me on May 8,

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2012, and to the best of my knowledge, information, and belief, formed after an inquiry

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reasonable under the circumstances:

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(1)

it is not being presented for any improper purpose, such as to

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harass or to cause unnecessary delay or needless increase in the cost

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of litigation;

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(2)

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warranted by existing law or by a nonfrivolous argument for the

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extension, modification, or reversal of existing law or the

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establishment of new law;

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(3)

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support or, if specifically so identified, are likely to have evidentiary

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support after a reasonable opportunity for further investigation or

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discovery; and

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(4)

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evidence or, if specifically so identified, are reasonably based on a

the claims, defenses, and other legal contentions therein are

the allegations and other factual contentions have evidentiary

the denials of factual contentions are warranted on the

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lack of information or belief.
I further certify that my signature on this document shall serve as an original

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signature on the above-referenced First Amended Complaint for the purposes of Local

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Rule of Civil Procedure 3.4 and Rule 11 of the Federal Rules of Civil Procedure.

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EXECUTED on this______day of______________________________, 2012.

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(Signature of Plaintiff)
Daniel Mendiola

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