Opinion
CV-23-02525-PHX-JAT (JZB)
10-10-2024
Dayshaun Darion Conner, Plaintiff, v. K. Taylor, et al., Defendants.
ORDER
James A. Teilborg Senior United States District Judge
On December 5, 2023, pro se Plaintiff Dayshaun Darion Conner, who is confined in the Arizona State Prison Complex-Eyman (ASPC-Eyman), filed a civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In a January 10, 2024 Order, the Court granted the Application to Proceed and dismissed the Complaint because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to file an amended complaint that cured the deficiencies identified in the Order.
On January 12, 2024, Plaintiff filed his First Amended Complaint. In a March 26, 2024 Order, the Court dismissed the First Amended Complaint because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to file a second amended complaint that cured the deficiencies identified in the Order. The Court warned Plaintiff that the Clerk of Court would enter a judgment of dismissal with prejudice if he failed to timely file a second amended complaint.
Not having received a second amended complaint or a motion for extension of time, on May 10, 2024, the Clerk of Court entered a Judgment of dismissal with prejudice. The Clerk of Court sent the May 10, 2024 Judgment to Plaintiff at his address of record. On May 13, 2024, the mail was returned as undeliverable because Plaintiff was out to court in Maricopa County. Plaintiff did not file a notice of change of address.
I. Motion for Excusable Neglect
On August 21, 2024, Plaintiff filed a “Motion for Excusable Neglect Pursuant to FRCP 60(b)(1) and (6), Prayer to Reopen Case and for Leave to File a Second Amended Complaint” (Doc. 12) and lodged a proposed Second Amended Complaint (lodged at Doc. 13). In his Motion, Plaintiff states that on March 7, 2024, he was transferred to a Maricopa County Jail on new criminal charges, where he remained until May 23, 2024. Plaintiff asserts he was unable to file a notice of change of address or “make any other action in this case” because his paperwork and documents remained at the prison, and he had no access to any information concerning this case.
Plaintiff states that on May 30, 2024, he received the May 10, 2024 Judgment. Plaintiff asserts that he did not “understand the Court's [Judgment] at the time” because the Judgment referenced a March 26, 2024 Order, which Plaintiff states he never received. Plaintiff states that on June 10, 2024, he was transferred to the La Palma Correctional Center, and on July 25, 2024, he was transferred back to ASPC-Eyman. Plaintiff states that at some point, another prisoner explained to Plaintiff that the First Amended Complaint had been “rejected,” and this case had been dismissed and closed. Plaintiff asserts that any untimeliness or failure to comply was not his fault because multiple transfers between facilities resulted in him not receiving documents or notices about this case, and his lack of experience “le[]d to Plaintiff not knowing what actions to take next.” Plaintiff asks the Court to reopen this case and allow him to file the lodged proposed Second Amended Complaint.
The Court construes the Motion as a Motion for Relief from Judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. Rule 60(b), which sets forth the grounds for relief from judgment, “provides for reconsideration only upon a showing of (1) mistake, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) a void judgment; (5) a satisfied or discharged judgment; or (6) ‘extraordinary circumstances' which would justify relief.” School Dist. No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (citation omitted). The moving party bears the burden of proving the existence of a basis for Rule 60(b) relief. Cassidy v. Tenorio, 856 F.2d 1412, 1415 (9th Cir. 1988). Although the moving party's factual allegations are to be accepted as true, mere legal conclusions, general denials, or simple assertions are insufficient to justify overturning the underlying judgment. Id.
The Court will grant relief from the May 10, 2024 Judgment pursuant to Rule 60(b)(1) and will grant Plaintiff's request to reopen this case. The Court will direct the Clerk of Court to vacate the May 10, 2024 Judgment, reopen this case, and send Plaintiff a copy of the March 26, 2024 Order. Because Plaintiff did not have the benefit of the March 26, 2024 Order when he drafted the lodged proposed Second Amended Complaint, the Court will direct the Clerk of Court not to file the lodged proposed Second Amended Complaint and will grant Plaintiff 30 days from the filing date of this Order to file a second amended complaint that cures the deficiencies identified in the Order.
II. Warnings
A. Release
If Plaintiff is released while this case remains pending, and the filing fee has not been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court that he intends to pay the unpaid balance of his filing fee within 120 days of his release or (2) file a non-prisoner application to proceed in forma pauperis. 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. Possible “Strike”
Because the First Amended Complaint has been dismissed for failure to state a claim, if Plaintiff fails to file a second amended complaint correcting the deficiencies identified in the March 26, 2024 Order, 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)U.S.C. § 1915(g).
D. 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. See 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) Plaintiff's “Motion for Excusable Neglect Pursuant to FRCP 60(b)(1) and (6), Prayer to Reopen Case and for Leave to File a Second Amended Complaint) (Doc. 12) is granted in part and denied in part.
(2) The Clerk of Court must vacate the May 10, 2024 Judgment (Doc. 10) and reopen this case.
(3) The Clerk of Court must not file the lodged proposed Second Amended Complaint (lodged at Doc. 13).
(4) Plaintiff has 30 days from the date this Order is filed to file a second amended complaint in compliance with the March 26, 2024 Order and this Order.
(5) If Plaintiff fails to file a second amended complaint within 30 days, the Clerk of Court 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) and deny any pending unrelated motions as moot.
(6) The Clerk of Court must mail Plaintiff a copy of the March 26, 2024 Order (Doc. 9) and a court-approved form for filing a civil rights complaint by a prisoner.