Beltran v. Martinez
Filing
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ORDER that Plaintiff's "Notice Judicial" is denied to the extent that any relief is sought therein 11 . Signed by Senior Judge Robert C Broomfield on 4/4/13. (TLJ)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Jose Carrera-Beltran,
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Plaintiff,
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vs.
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Rosa Martinez,
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Defendant.
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No. CV 12-2023-PHX-RCB (SPL)
ORDER
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Plaintiff Jose Carrera-Beltran, who is confined in the U.S. Penitentiary in Lompoc,
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California, filed a pro se civil rights Complaint pursuant to Bivens v. Six Unknown Named
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Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which the Court dismissed for
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failure to state a claim with leave to amend. (Doc. 1, 5.) Plaintiff filed a First Amended
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Complaint, which the Court also dismissed for failure to state a claim with leave to amend.
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(Doc. 7, 8.) Plaintiff has filed a “Notice Judicial”. (Doc. 11.) In the Notice, Plaintiff states
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that he wishes to authorize Mrs. Mayratavira to be “in charge” of his case regarding his bank
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account with Chase Bank and he wishes to authorize her to access funds in that account.
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Plaintiff appears in part to be attempting to authorize Mrs. Mayratavira to prosecute this case
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on his behalf, but he does not indicate that Mrs. Mayratavira is an attorney. Only an attorney
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may appear on Plaintiff’s behalf in this case. See C.E. Pope Equity Trust v. United States,
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818 F.2d 696, 697 (9th Cir. 1987) (a non-attorney has no authority to appear as an attorney
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for anyone other than himself); Elustra v. Mineo, 595 F.3d 699, 704 (7th Cir. 2010)
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To the extent that Plaintiff seeks any relief in his Notice, his Notice will be denied.
(“Normally, representative parties such as next friends may not conduct litigation pro se;
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pleadings may be brought before the court only by parties or their attorney.”); Simon v.
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Hartford Life, Inc., 546 F.3d 661 (9th Cir. 2008) (in action brought by pro se litigant, the real
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party in interest must be the person who by substantive law has the right to be enforced);
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Stoner v. Santa Clara County Office of Educ., 502 F.3d 1116, (9th Cir. 2007). Plaintiff also
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appears to be attempting to authorize access to his bank account by Mrs. Mayratavira.
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However, Plaintiff must make such arrangements directly with his bank and may not do so
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by filing a notice in his case. For the reasons discussed, Plaintiff’s Notice will be denied to
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the extent that any relief is sought therein.
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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.
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 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 February 11, 2013 Order, the dismissal may count as a “strike” under the “3-strikes”
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D.
Possible “Strike”
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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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 the February 11, 2013 Order
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and 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 that Plaintiff’s “Notice Judicial” is denied to the extent that any relief is
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sought therein. (Doc. 11.)
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Possible Dismissal
DATED this 4th day of April, 2013.
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