Opinion
No. CV 07-2553-PHX-SMM (LOA).
June 2, 2008
ORDER
Pending before the Court is Plaintiff's "Motion For Extension of Time to File Amended Complaint" (Doc. #7), which the Court will grant.
I. Procedural Background
On December 17, 2007, Plaintiff Leonard L. Manning, who is confined in the Arizona State Prison Complex-Eyman, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. #1) and an Application to Proceed In Forma Pauperis (Doc. #3). By Order filed April 28, 2008 (Doc. #4), the Court granted the Application to Proceed In Forma Pauperis, assessed an initial partial filing fee, and dismissed the Complaint for failure to state a claim. Plaintiff was given 30 days from the filing date of the Order to file a first amended complaint in compliance with the Order.
II. Motion for Extension of Time to File Amended Complaint
To date, Plaintiff has not filed a first amended complaint. However, on May 28, 2008, Plaintiff filed a "Motion For Extension of Time to File Amended Complaint" (Doc. #7), in which he requests a 20-day extension of time to file an amended complaint.
In support of his Motion, Plaintiff states that because Memorial Day fell on his regular library day, he is unable to complete and copy his amended complaint by May 28, 2008.
For good cause shown, Plaintiff's Motion will be granted, and Plaintiff will be given 20 days from the filing date of this Order to file a first amended complaint.
III. 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.
B. Address Changes
Plaintiff must file and serve a notice of a change of address 10 days before the move is effective, if practicable. See LRCiv 83.3(d). Plaintiff may not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal.
C. Copies
Plaintiff must submit an additional copy of every document that he files 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 April 16, 2007 Order, the dismissal will 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. 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 HEREBY ORDERED:
(1) Plaintiff's "Motion For Extension of Time to File Amended Complaint" (Doc. #7) is granted. Plaintiff has 20 days from the date this Order is filed to file a first amended complaint that complies with the Court's April 28, 2008 Order (Doc. #4).
(2) If Plaintiff fails to file an amended complaint within 20 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action with prejudice that states that the dismissal counts as a "strike" under 28 U.S.C. § 1915(g).