Opinion
No. CV 12-0303-PHX-GMS (LOA)
04-16-2012
Torrance Derrick Mincey, Plaintiff, v. Joseph M. Arpaio, et al., Defendants.
ORDER
Plaintiff Torrance Derrick Mincey, who is confined in the Arizona State Prison Complex, East Unit, in Florence, Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983. In an Order filed on April 6, 2012, the Court dismissed the Complaint with leave to file an amended complaint within 30 days. (Doc. 8.) On April 13, 2012, Plaintiff filed a motion for an extension of time in which to file an amended complaint, copies of his Complaint and filings from a state case, and asks that he not be assessed court costs. Plaintiff fails to indicate the reason for seeking an extension of time or how much additional time he requests. Nevertheless, the Court will grant him an additional 20 days to file a First Amended Complaint. A copy of Plaintiff's Complaint will be sent to Plaintiff. The balance of the relief requested will be denied.
Plaintiff in part appears to seek to have the assessment for the filing fee for this action vacated. Federal statutes impose a filing fee for any litigant to commence a civil case in federal court. 28 U.S.C. § 1914. As the Court's prior Order, and the court-approved form for a prisoner seeking leave to proceed in forma pauperis, informed Plaintiff, a prisoner who is granted leave to proceed in forma pauperis is statutorily required to pay the filing fee of $350.00. (Doc. 8, citing 28 U.S.C. § 1915(b)(1)). Plaintiff cites no authority, nor is the Court aware of any, that permits the Court to vacate the assessment of a filing fee. Accordingly, Plaintiff's motion will be denied to the extent that he seeks to have the assessment for the filing fee vacated.
Plaintiff also asks the Court to provide him a copy of his Complaint in this case and copies of documents from a state court case filed by him, which he seeks to assist in drafting an amended complaint. Plaintiff is reminded that a copy of the Complaint from this case will be forwarded to Plaintiff. However, Plaintiff's request to have copies of documents from his state court case will be denied. Plaintiff must contact the state court, i.e., Maricopa County Superior Court, to obtain copies of those documents.
In its prior Order, the Court cited information contained in state court minute orders, some of which may be viewed on-line. However, Plaintiff's filings in his special action and any responses thereto, are not available on-line and federal courts do not possess or maintain copies of state court filings.
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 April 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 April 6, 2012 Order and this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at 1260-61 (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 an extension of time is granted in part and denied in part. The motion is granted to the extent set forth below and otherwise denied. (Doc. 10.)
(2) Plaintiff is granted an additional 20 days from the original deadline set in the April 6, 2012 Order, doc. 8, in which to file a first amended complaint in compliance with the April 6, 2012 Order, doc. 8.
(3) If Plaintiff fails to file an amended complaint within the extension granted herein, 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).
(4) The Clerk of Court must mail Plaintiff a copy of his Complaint, doc. 1.
____________
G. Murray Snow
United States District Judge
CIVIL RIGHTS COMPLAINT BY A PRISONER
[√] Original Complaint
[√] First Amended Complaint
[] Second Amended Complaint
A. JURISDICTION
This Court has jurisdiction over this action pursuant to:
[] 28 U.S.C. § 1343(a); 42 U.S.C. § 1983
[] 28 U.S.C. § 1331; Bivens v. Six Unkonwn Federal Narcoties Agents, 430 U.S. 388(1971).
[] Other
2. Institution/city where violation occurred:
B. DEFENDANTS
1. Name of first Defendant: ____________ The first Defendant is employed as: (Position and Title) ____________ at ____________ (Institution)
2. Name of second Defendant: ____________ The second Defendant is employed as: (Position and Title) ____________ at ____________ (Institution)
3. Name of third Defendant: ____________ The third Defendant is employed as: (Position and Title) ____________ at ____________ (Institution)
4. Name of fourth Defendant: ____________ The fourth Defendant is employed as: (Position and Title) ____________ at ____________ (Institution)
If you name more than four Defendants, answer the questions listed above for each additional Defendant on a separate page.
C. PREVIOUS LAWSUITS
1. Have you filed any other lawsuits while you were a prisoner? [] Yes [√] No
2. If yes, how many lawsuits have you filed?_. Describe the previous lawsuits:
a. First prior lawsuit:
1. Parties: ____________ v. ____________
2. Court and case number:
3. Result: (Was the case dismissed? Was it appealed? Is it still pending?)
b. Second prior lawsuit:
1. Parties: ____________ v. ____________
2. Court and case number:
3. Result: (Was the case dismissed? Was it appealed? Is it still pending?)
c. Third prior lawsuit:
1. Parties: ____________ v. ____________
2. Court and case number:
3. Result: (Was the case dismissed? Was it appealed? Is it still pending?).
If you filed more than three lawsuits, answer the questions listed above for each additional lawsuit on a separate page.
D. CAUSE OF ACTION
COUNT I
1. State the constitutional or other federal civil right that was violated:
2. Count I. Identify the issue involved. Check only one. State additional issues in separate counts
[] Basic necessities [] Mail [] Access to the court [] Medical care
[] Disciplinary proceedings [] Property [] Exercise of religion [] Retaliation
[] Excessive force by an officer [] Threat to safety [] Other: ____________
3. Supporting Facts State as briefly as possible the FACTS supporting Count I. Describe exactly what each Defendant did or did not do that violated your rights. State the facts clearly in your own words without citing legal authority or arguments.
4. Injury. State how you were injured by the actions or inactions of the Defendant(s).
5. Administrative Remedies.
a. Are there any administrative remedies (grievance procedures or administrative appeals) available at your institution? [] Yes [] No
b. Did you submit a request for administrative relief on Count I? [] Yes [] No
c. Did you appeal your request for relief on Count II to the highest level? [] Yes [] No
d. If you did not sbmit or appeal a request for administrative relief at any level, briefly explain why you did not.
COUNT II
1. State the constitutional or other federal civil right that was violated:
2. Count II. Identify the issue involved. Check only one. State additional issues in separate counts
[] Basic necessities [] Mail [] Access to the court [] Medical care
[] Disciplinary proceedings [] Property [] Exercise of religion [] Retaliation
[] Excessive force by an officer [] Threat to safety [] Other: ____________
3. Supporting Facts State as briefly as possible the FACTS supporting Count II. Describe exactly what each Defendant did or did not do that violated your rights. State the facts clearly in your own words without citing legal authority or arguments.
4. Injury. State how you were injured by the actions or inactions of the Defendant(s).
5. Administrative Remedies.
a. Are there any administrative remedies (grievance procedures or administrative appeals) available at your institution? [] Yes [] No
b. Did you submit a request for administrative relief on Count II? [] Yes [] No
c. Did you appeal your request for relief on Count II to the highest level? [] Yes [] No
d. If you did not sbmit or appeal a request for administrative relief at any level, briefly explain why you did not.
COUNT III
1. State the constitutional or other federal civil right that was violated:
2. Count III. Identify the issue involved. Check only one. State additional issues in separate counts
[] Basic necessities [] Mail [] Access to the court [] Medical care
[] Disciplinary proceedings [] Property [] Exercise of religion [] Retaliation
[] Excessive force by an officer [] Threat to safety [] Other: ____________
3. Supporting Facts State as briefly as possible the FACTS supporting Count III. Describe exactly what each Defendant did or did not do that violated your rights. State the facts clearly in your own words without citing legal authority or arguments.
4. Injury. State how you were injured by the actions or inactions of the Defendant(s).
5. Administrative Remedies.
a. Are there any administrative remedies (grievance procedures or administrative appeals) available at your institution? [] Yes [] No
b. Did you submit a request for administrative relief on Count III? [] Yes [] No
c. Did you appeal your request for relief on Count II to the highest level? [] Yes [] No
d. If you did not sbmit or appeal a request for administrative relief at any level, briefly explain why you did not.
E. REQUEST FOR RELIEF
State the relief you are seeking:
declare under penalty of perjury that the foregoing is true and correct.
________________________
SIGNATURE OF PLAINTIFF
________________________
(Name and title of paralegal, legal assistant, or
other person who helped prepare this complaint)
________________________
(Signature of attorney, if any)
________________________
(Attorney's address & telephone number)
ADDITIONAL PAGES
All questions must be answered concisely in the proper space on the form. If you need more space you may attach no more than fifteen additional pages. But the form must be completely filed in to the extent applicable. If you attach additional pages, be sure to identify which section of the coplaint is being continued and number all pages.
MARICOPA COUNTY SHERIFF'S OFFICE
JOSEPH M. ARPAIO SHERIFF
CERTIFICATION
I hereby certify that on this date February 9, 2012
I mailed the original and one copy (1) to the Clerk of the United States District Court, District of Arizona.
I further certify that copies of the original have been forwarded to:
_ Hon _ United States District Court, District of Arizona.
_ Hon _ United States District Court, District of Arizona.
_ Attorney General, State of Arizona.
_ Judge, _, Superior Court, Maricopa County, State of
Arizona.
_ County Attorney _, Maricopa County, State of Arizona,
_ Public Defender _, Maricopa County, State of Arizona.
_ Attorney
INMATE LEGAL SERVICES
Maricopa County Sheriff's Office
201 S. 4th Avenue
Phoenix, AZ 85003