No. CV 07-8043-PCT-SMM (MHB).
August 29, 2007
Plaintiff Rafael Carrisoza Rivera, who is confined in the Diamondback Correctional Facility in Watonga, Oklahoma, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983. On August 6, 2007, the Court dismissed the Complaint with leave to amend. On August 20, 2007, Plaintiff filed a Motion for Extension of Time to File Amended Complaint (Doc. #6).
In his Motion for Extension of Time, Plaintiff states that he did not receive the Court's Order until several days after it was filed and asks for additional time to file an amended complaint. The Court will grant Plaintiff's Motion. Plaintiff will have 30 days from the filing date of this Order to file an amended Complaint that complies with the Court's August 6, 2007 Order.
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.
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 this 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 ORDERED:
(1) Plaintiff's August 20, 2007 Motion for Extension of Time (Doc. #6) is granted.
(2) Plaintiff has 30 days from the date this Order is filed to file a first amended complaint in compliance with the Court's August 6, 2007 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 counts as a "strike" under 28 U.S.C. § 1915(g).