Free Order on Motion to Amend/Correct - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 Terry Allred, et al., 13 Defendants. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case 2:04-cv-00643-JAT--MS
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Paul Eugene Rhodes, Plaintiff, vs.

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No. CV-04-643-PHX-JAT (MS) ORDER

On March 31, 2004, Paul Eugene Rhodes (Plaintiff), presently confined in the Central Unit of the Arizona State Prison Complex in Florence, Arizona (ASPC-Florence), filed with the Clerk of the Court a pro se "Civil Rights Complaint By A Prisoner" (Document #1) (Complaint) pursuant to 42 U.S.C. § 1983.1 Plaintiff did not pay the one hundred and fifty dollar ($150.00) filing fee, but he did file a certified "Application To Proceed In Forma Pauperis By A Prisoner Civil (Non-Habeas)" (Document #3) (Application To Proceed) with his Complaint, which was insufficient to support the request to proceed in forma pauperis. By Order filed April 23, 2004, Plaintiff's Application To Proceed was denied without prejudice and Plaintiff was given thirty (30) days from the filing date of the Order to file a properly signed and certified Application To Proceed on the form provided with the Order,

When Plaintiff filed the Complaint he was confined in the South Unit of ASPC-Florence.

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accompanied by a copy of Plaintiff's trust account statement for the six (6) months preceding the filing of the Complaint. On May 28, 2004, Plaintiff filed a new Application To Proceed (Document #7) and a "Certified Statement Of Account." By Order filed March 21, 2005, the Court granted the new Application To Proceed and Plaintiff was obligated to pay the one hundred and fifty dollar ($150.00) statutory filing fee for this action. No initial partial filing fee was assessed. The Order filed March 21, 2005, also denied Plaintiff's "Motion for Preliminary Injunction" (Document #4), denied without prejudice Plaintiff's "Motion for Appointment of Counsel" (Document #5), granted Plaintiff's "Request for Status" (Document #8) to the extent that the Order served to inform Plaintiff as to the status of this case, and dismissed Plaintiff's Complaint without prejudice, with leave to amend. Plaintiff was given thirty (30) days from the filing date of the Order to file an amended complaint on the Court-approved form included with the Order. By separate Order filed March 21, 2005, the Director of the Arizona Department of Corrections (ADOC) or her designee was directed to collect from Plaintiff's trust account the one hundred and fifty dollar ($150.00) filing fee by collecting monthly payments from Plaintiff's trust account in an amount equal to twenty percent (20%) of the preceding month's income credited to Plaintiff's trust account. On April 22, 2005 Plaintiff filed a "Motion for Extension" (Document #13) (Motion), in which he sought a thirty (30) day extension of time to file his amended complaint. By Order filed May 10, 2005, Plaintiff's Motion was granted and Plaintiff was given thirty (30) days from the filing date of the Order to file an amended complaint on the Court-approved form included with the Court's previous Order filed March 21, 2005. REQUEST FOR DISMISSAL AND OR STAY To date, Plaintiff has not complied with the Court's March 21, 2005 Order by filing an amended complaint. However, on June 9, 2005, Plaintiff filed a "Request for Dismissal; And Or Stay" (Document #15) (Request), in which he asks the Court to "dismiss the above case, with leave to amend or to grant a stay in the case." (Request at 1). The Court assumes that -2Document 16 Filed 07/09/2005 Page 2 of 4

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what Plaintiff is requesting is that this action be dismissed without prejudice to his raising his claims in a new action at a later time, or to grant an indefinite stay of this action. In support of his Request, Plaintiff asserts that he will be released in ten (10) months and will seek medical treatment at that time, and that without expert medical opinion he will surely not survive summary judgment. Id. at 1-2. While the Court can understand how hard it is for someone not trained in the law to pursue a civil action in this Court, the decision to file and prosecute this case was made by Plaintiff before he filed this case. Now that he has filed this case, Plaintiff has the general duty to move the case forward. Fidelity Philadelphia Trust Co. v. Pioche Mines Consolidated, Inc., 587 F.2d 27, 29 (9th Cir. 1978) ("It is a well established rule that the duty to move a case is on the plaintiff and not on the defendant or the court.") (citation omitted). Moreover, not only does the public have an "interest in the expeditious resolution of litigation," Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1990), but also the Court has the inherent power to manage its own affairs "so as to achieve the orderly and expeditious disposition of cases," Link v. Wabash Railroad, 370 U.S. 626, 630-31 (1962). It is the opinion of this Court that it is not in the public interest for this action to be stayed indefinitely to enable Plaintiff to be released from prison, seek medical treatment, and seek expert medical opinion before proceeding with this case. Accordingly, Plaintiff's Request will be denied in part to the extent that he seeks a stay of this action. Pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure, the Court may, at the Plaintiff's insistence, dismiss this action by order of the Court. Rule 41(a)(2) of the Federal Rules of Civil Procedure also provides that "unless otherwise stated in the order, a dismissal under this paragraph is without prejudice." Under Rule 41(a)(1)(i) of the Federal Rules of Civil Procedure, Plaintiff also has the right to voluntarily dismiss this action without order of the Court "by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs." Although Plaintiff has filed a Request, rather than a Notice of Voluntary Dismissal -3Document 16 Filed 07/09/2005 Page 3 of 4

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Pursuant to Rule 41(a)(1)(i) of the Federal Rules of Civil Procedure, the Court notes that the posture of Plaintiff's case meets the requirements of Rule 41(a)(1)(i) in that the action has not yet been served, and no Defendant has filed an answer or a motion for summary judgment. Accordingly, Plaintiff's Request will be granted in part pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure to the extent that Plaintiff seeks dismissal of this action without prejudice.2 IT IS THEREFORE ORDERED: (1) That Plaintiff's "Request for Dismissal; And Or Stay" (Document #15) is DENIED IN PART to the extent that Plaintiff seeks a stay of this action, and GRANTED IN PART to the extent that he seeks dismissal of this action without prejudice; (2) That pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure this action is DISMISSED WITHOUT PREJUDICE and the Clerk of the Court is DIRECTED TO ENTER JUDGMENT accordingly.

DATED this 8th day of July, 2005.

Plaintiff should note with regard to any new case that he may seek to file in the future on the claims in the instant action that a state's personal injury statute of limitations provides the applicable time limit for filing a civil rights claim pursuant to 42 U.S.C. § 1983. Wilson v. Garcia, 471 U.S. 261, 268-71 (1985). Arizona Revised Statutes (A.R.S.) § 12-542(1) provides that actions for personal injuries shall be commenced within two (2) years after the cause of action accrues. Under federal law, "a claim generally accrues when a plaintiff knows or has reason to know of the injury which is the basis of his action." Cabrera v. City of Huntington Park, 159 F.3d 374, 379 (9th Cir. 1998).

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