Opinion
No. CV 10-2731-PHX-RCB (LOA).
February 23, 2011
ORDER
Plaintiff Ramon Ordonez is confined in the Maricopa County Durango Jail. In a January 27, 2011 Order, the Court dismissed Plaintiff's First Amended Complaint because Plaintiff had failed to state a claim and gave Plaintiff 30 days to file an amended complaint that cured the deficiencies identified in the Order. On February 16, 2011, Plaintiff filed a Second Amended Complaint (Doc. 12).
I. Second Amended Complaint is not signed
All pleadings must be signed by the party if the party is not represented by an attorney. Fed.R.Civ.P. 11(a) and LRCiv 3.4(a), 7.1(b)(1). An unsigned pleading must be stricken unless omission of the signature is corrected promptly after being called to the attention of the party. Fed.R.Civ.P. 11(a).
Plaintiff's Second Amended Complaint is unsigned. Therefore, Plaintiff will be permitted 30 days from the filing date of this Order to submit a completed and signed Certificate, using the Certificate form included with this Order, certifying that Plaintiff's signature on the Certificate shall serve as an original signature on his Second Amended Complaint for the purposes of Rule 3.4(a) of the Local Rules of Civil Procedure and Rule 11 of the Federal Rules of Civil Procedure.
II. Warnings
A. Release
Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release. Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result in dismissal of this action.
B. Address Changes
Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.
C. Copies
Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice to Plaintiff.
D. Possible "Strike"
If Plaintiff fails to file a completed and signed Certificate certifying that Plaintiff's signature on the Certificate shall serve as an original signature on his Second Amended Complaint, the Court will strike the Second Amended Complaint and will enter a judgment of dismissal of this action. Because the First Amended Complaint has been dismissed for failure to state a claim, the dismissal may count as a "strike" under the "3-strikes" provision of 28 U.S.C. § 1915(g). Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915 "if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g).
E. Possible Dismissal
If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court).
IT IS ORDERED:
(1) Within 30 days of the date this Order is filed, Plaintiff must file a completed and signed Certificate, using the Certificate form provided with this Order, certifying that Plaintiff's signature on the Certificate shall serve as an original signature on his Second Amended Complaint for the purposes Rule 3.4(a) of the Local Rules of Civil Procedure and Rule 11 of the Federal Rules of Civil Procedure.
(2) If Plaintiff fails to file, within 30 days, a completed and signed Certificate on the form provided with this Order, the Clerk of Court must strike Plaintiff's Second Amended Complaint and 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).
(3) The Clerk of Court must mail Plaintiff a Certificate form.
DATED this 23rd day of February, 2011.
CERTIFICATE
I, Ramon Ordonez, hereby certify:I have read the pro se Second Amended Complaint (Doc. 12) filed by me on February 16, 2011, and to the best of my knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
I further certify that my signature on this document shall serve as an original signature on the above-referenced Second Amended Complaint for the purposes of Local Rule of Civil Procedure 3.4(a) and Rule 11 of the Federal Rules of Civil Procedure.
EXECUTED on this _____ day of ______________________, 2011.
__________________________________ (Signature of Plaintiff) Ramon Ordonez