Kelly #137699 v. Ryan et al
Filing
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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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