Opinion
No. CV 12-1353-PHX-RCB (JFM)
10-18-2012
Joshua James Gerst, Plaintiff, v. Joseph M. Arpaio, Defendant.
ORDER
Plaintiff Joshua James Gerst, who is confined in the Arizona State Prison Complex-Lewis, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In an August 6, 2012 Order, the Court granted the Application to Proceed, dismissed the Complaint, and granted Plaintiff 30 days to file an amended complaint. On August 22, 2012, Plaintiff filed a Notice of Change of Address (Doc. 10) and a Motion for Status of Service of Process (Doc. 9). On October 5, 2012, the Clerk of Court re-sent the August 6th Order to Plaintiff at his new address.
I. Motion and Extension of Time to File Amended Complaint
In his Motion for Status, Plaintiff asks that the Court inform him of the status of service of his Complaint. The Court has dismissed the Complaint with leave to amend. If Plaintiff files an amended complaint, the Court will review the amended complaint to determine whether service is appropriate.
Because it appears that Plaintiff did not receive the August 6th screening Order until this month, the Court will give Plaintiff 30 days from the filing date of this Order to file an amended complaint.
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"
Because the Complaint has been dismissed for failure to state a claim, if Plaintiff fails to file an amended complaint correcting the deficiencies identified in the August 6, 2012 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).
E. Possible Dismissal
If Plaintiff fails to timely comply with every provision of the August 6, 2012 Order, or 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 August 22, 2012 Motion for Status (Doc. 9) is granted insofar as this Order informs Plaintiff of the status of this case.
(2) Plaintiff has 30 days from the date this Order is filed to file a first amended complaint in compliance with the August 6, 2012 Order.
(3) If Plaintiff fails to file an 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).
__________________
Robert C. Broomfield
Senior United States District Judge