Powell v. Magness

Filing 21

ORDER Plaintiff's Application to Proceed In Forma Pauperis is denied as moot. (Doc. 16 .) Plaintiff's motion for clarification is granted to the extent set forth herein. (Doc. 18 .) Defendant's motion to strike the Second Amended Complaint, doc. 19 , is granted and the Second Amended Complaint, doc. 15, is ordered stricken. Signed by Judge G Murray Snow on 10/17/2012.(KMG)

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WO

SC

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Beauford Powell,
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Plaintiff,
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vs.
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Shawn Magness,
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Defendant.
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No. CV 12-0663-PHX-GMS (DKD)
ORDER

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Plaintiff Beauford Powell, who is confined in the Fourth Avenue Jail in Phoenix,

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Arizona, filed a pro se civil rights Complaint in state court. (Doc. 1.) On March 28, 2012,

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Defendant removed the case to federal court and paid the $350.00 filing fee. (Id.) The Court

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dismissed the Complaint with leave to amend for failure to state a claim. (Doc. 5.) Plaintiff

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filed a First Amended Complaint. (Doc. 6.) The Court dismissed two of Plaintiff’s claims

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but ordered service of the First Amended Complaint on Defendant as to a third claim. (Doc.

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8.) However, the Court stayed the filing of a response by Defendant Magness as to that claim

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pending further Court order and ordered Magness to file a notice every 90 days regarding the

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status of Plaintiff’s state criminal cases. (Id.)

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On September 17, 2012, Plaintiff filed an Application to Proceed In Forma Pauperis.

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(Doc. 12.) Because Defendant removed this case to federal court, Defendant was obligated

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to pay the $350.00 filing fee. For that reason, the Court denied Plaintiff’s application as

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moot. (Doc. 14.)

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On September 24, 2012, Plaintiff submitted a “Second Amended Complaint” and

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another Application to Proceed In Forma Pauperis. (Doc. 15, 16.) On October 12, 2012,

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Defendant filed a motion to strike the Second Amended Complaint. (Doc. 19.) Plaintiff’s

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in forma pauperis application will be denied as moot for the reasons stated in the Court’s

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September 18, 2012 Order, doc. 14. Defendant’s motion to strike will be granted. Rule 15(a)

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of the Federal Rules of Civil Procedure provides that a party may amend its pleading once

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as a matter course within 21 days after serving it, or if the pleading is one to which a

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responsive pleading is required, 21 days after service of a responsive pleading or 21 days

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after service of a motion under Rule 12(b), (e), or (f), whichever is earlier. “In all other

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cases, a party may amend its pleading only with the opposing party’s written consent or the

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court’s leave.” Fed. R. Civ. P. 15(a)(2). The Court ordered service of the First Amended

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Complaint on July 20, 2012. Plaintiff’s “Second Amended Complaint” was filed on

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September 24, 2012, more than 21 days after service. Therefore, Plaintiff was required to

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either to seek leave of Court or the written consent of the Defendant before again amending

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the complaint. Plaintiff failed to do either. Accordingly, Plaintiff’s “Second Amended

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Complaint” is stricken.

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On October 5, 2012, Plaintiff filed a motion for clarification, which will be granted

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to the extent set forth herein. (Doc. 18.) In this motion, Plaintiff seeks clarification as to

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whether he is obligated to pay any portion of the federal filing fee citing a standard warning

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included in the Court’s September 18 Order. That warning, in section A, requires an inmate

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to notify the Court that he intends to pay the balance of the federal filing fee or show good

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cause why he cannot within 30 days after his release. (Doc. 14 at 1-2.) Because this case

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was removed from state court by Defendant, Plaintiff is not obligated to pay the federal filing

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fee; the warning was erroneously included in that Order.

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Warnings

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A.

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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B.

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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C.

Possible Dismissal

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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. See Ferdik v. Bonzelet,

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963 F.2d at 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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IT IS ORDERED:

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(1)

Plaintiff’s Application to Proceed In Forma Pauperis is denied as moot. (Doc.

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(2)

Plaintiff’s motion for clarification is granted to the extent set forth herein.

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(Doc. 18.)

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(3)

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16.)

Defendant’s motion to strike the Second Amended Complaint, doc. 19, is

granted and the Second Amended Complaint, doc. 15, is ordered stricken.
DATED this 17th day of October, 2012.

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