Kelly #137699 v. Ryan et al

Filing 19

ORDER, Plaintiff's Request for a 30 Day Extension 18 is granted; Plaintiff has 30 days to file a third amended complaint in compliance with the 5/5/14 Order and this Order; if Plaintiff fails to comply with this order, the Clerk 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 Stephen M McNamee on 7/31/14. (Attachments: # 1 Complaint Form)(REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Aaron Dwayne Kelly,

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No. CV 14-0241-PHX-SMM (LOA)

Plaintiff,
vs.

ORDER

Director Charles Ryan, et al.,

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Defendants.

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On February 7, 2014, while confined in the Arizona State Prison Complex-Eyman,

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Plaintiff Aaron Dwayne Kelly 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 a February 18, 2014 Order,

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the Court denied the deficient Application to Proceed and gave Plaintiff 30 days to either

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pay the filing and administrative fees or file a complete Application to Proceed In Forma

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Pauperis.

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On March 11, 2014, Plaintiff filed a second Application to Proceed In Forma

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Pauperis and a First Amended Complaint. In a March 20, 2014 Order, the Court granted

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the second Application to Proceed and dismissed the First Amended Complaint because

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Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to file a second

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amended complaint that cured the deficiencies identified in the Order.

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Files to Work my Case Interrog[a]tories etc.” On April 3, 2014, he filed a Second

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JDDL-K

On March 27, 2014, Plaintiff filed a “Motion to Request Copies of All Medical

Amended Complaint. In a May 5, 2014 Order, the Court dismissed the Second Amended

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Complaint because Plaintiff had failed to state a claim and denied as premature the

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Motion to Request Copies. The Court gave Plaintiff 30 days to file a third amended

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complaint that cured the deficiencies identified in the Order.

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On May 9, 2014, Plaintiff filed a notice of change of address, providing the Court

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with a new address to be used when he was released from prison on June 25, 2014. On

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June 18, 2014, Plaintiff filed a “Request for a 30 Day Extension” (Doc. 18).

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I.

Pending Motion

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In his “Request for a 30 Day Extension,” Plaintiff states that he has received

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“additional proof that the medical was in fact in the wrong” and that he has not had “the

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time or material to complete further actions on [his] end.” Plaintiff has attached to his

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Request an Inmate Grievance form, an Inmate Grievance Appeal form, and a Medical

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Grievance Appeal decision that grants Plaintiff’s medical grievance appeal. Plaintiff

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requests a thirty-day extension of time to comply with the May 5 Order, requests that the

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Court “view the documents, and requests that the Court send Plaintiff copies of the

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proper forms if he “need[s] to file anything further.”

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The Court, in its discretion, will grant Plaintiff’s Request and will give him an

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additional 30 days to file a third amended complaint that cures the deficiencies identified

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in the May 5 Order.1 In addition, the Court will direct the Clerk of Court to send Plaintiff

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another copy of the court-approved form for filing a civil rights complaint by a prisoner.

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II.

Warnings

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A.

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

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

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for other relief with a notice of change of address. Failure to comply may result in

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dismissal of this action.

Address Changes

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The Court dismissed the Second Amended Complaint because Plaintiff had
failed to state a claim and gave Plaintiff leave to file a third amended complaint that does
state a claim. Thus, Plaintiff must file a third amended complaint that states a
constitutional claim; he cannot simply rely on the submitted paperwork.
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B.

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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

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notice to Plaintiff.

Copies

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C.

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Because the Second Amended Complaint has been dismissed for failure to state a

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claim, if Plaintiff fails to file a third amended complaint correcting the deficiencies

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identified in the May 5 Order, the dismissal may 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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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

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grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be

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granted, unless the prisoner is under imminent danger of serious physical injury.” 28

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U.S.C. § 1915(g).

Possible “Strike”

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D.

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If Plaintiff fails to timely comply with every provision of the May 5 Order and this

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Order, including these warnings, the Court may dismiss this action without further notice.

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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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IT IS ORDERED:

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(1)

Possible Dismissal

Plaintiff’s “Request for a 30 Day Extension” (Doc. 18) is granted.

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Plaintiff has 30 days from the date this Order is filed to file a third amended complaint in

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compliance with the May 5, 2014 Order and this Order.

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(2)

If Plaintiff fails to file a third amended complaint within 30 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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(3)

The Clerk of Court must mail Plaintiff a court-approved form for filing a

civil rights complaint by a prisoner.
DATED this 31st day of July, 2014.

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