Mendiola v. Arpaio
Filing
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ORDER granting 13 Plaintiff's Motion for Extension of Time to File. Plaintiff has 15 days from the date this Order is filed to file a second amended complaint in compliance with the July 18, 2012 Order and this Order. If Plaintiff fails to f ile a second amended complaint within 15 days, 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 9/17/12.(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,
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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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Plaintiff Daniel Mendiola is confined in the Maricopa County Fourth Avenue Jail.
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In a July 18, 2012 Order, the Court dismissed his First Amended Complaint for failure to
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state a claim upon which relief could be granted. The Court gave Plaintiff 30 days to file a
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second amended complaint that cured the deficiencies identified in the Order.
On August 22, 2012, Plaintiff filed a “Motion for Continu[a]nce” (Doc. 22).
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I.
Motion for Continuance
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In his Motion for Continuance, Plaintiff seeks an additional 15 days to file his second
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amended complaint. The Court finds good cause to grant the Motion for Continuance and
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will give Plaintiff an additional 15 days to file his second amended complaint.
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II.
Warnings
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Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release.
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JDDL-K
A.
Release
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 First Amended Complaint has been dismissed for failure to state a claim,
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if Plaintiff fails to file a second amended complaint correcting the deficiencies identified in
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the July 18, 2012 Order, the dismissal may count as a “strike” under the “3-strikes” provision
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of 28 U.S.C. § 1915(g). Under the 3-strikes provision, a prisoner may not bring a civil action
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or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on
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3 or more prior occasions, while incarcerated or detained in any facility, brought an action
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or appeal in a court of the United States that was dismissed on the grounds that it is frivolous,
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malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is
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under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
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If Plaintiff fails to timely comply with every provision of the July 18, 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 v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may
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dismiss an action for failure to comply with any order of the Court).
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....
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JDDL-K
E.
Possible Dismissal
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IT IS ORDERED:
(1)
Plaintiff’s “Motion for Continu[a]nce” (Doc. 13) is granted. Plaintiff has 15
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days from the date this Order is filed to file a second amended complaint in compliance with
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the July 18, 2012 Order and this Order.
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(2)
If Plaintiff fails to file a second amended complaint within 15 days, the Clerk
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of Court must, without further notice, enter a judgment of dismissal of this action with
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prejudice that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915(g).
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DATED this 17th day of September, 2012.
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JDDL-K
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