Free Order - District Court of Arizona - Arizona

RP

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Case 2:04-cv-00381-SMM--VAM When Plaintiff filed the Complaint, he was confined in the Maricopa County Madison Street Jail in Phoenix, Arizona (Madison Street Jail).
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Plaintiff, ) ) vs. ) Maricopa County Sheriff's Office, et al., ) ) ) Defendants. ) Sheldon Maurice Johnson,

No. CV-04-381-PHX-SMM (VAM) ORDER

Sheldon Maurice Johnson (Plaintiff), presently confined in the Barchey Blue Unit of the Arizona State Prison Complex - Lewis in Buckeye, Arizona (ASPC-Lewis), filed with the Clerk of the Court a pro se "Civil Rights Complaint By A Prisoner" (Document #1) (Complaint) (Document #1).1 Plaintiff did not pay the one hundred and fifty dollar ($150.00) filing fee, but he filed a certified "Application To Proceed In Forma Pauperis By A Prisoner Civil (Non-Habeas)" (Application To Proceed) and an "Inmate Account Statement" (Account Statement) with his Complaint. By Order filed October 12, 2004 (Document #5), Plaintiff's Application to Proceed was granted and Plaintiff was obligated to pay the one hundred and fifty dollar ($150.00) statutory filing fee for this action. Based on average monthly balances and deposits of zero

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($0.00) in his trust account, Plaintiff was not assessed an initial partial filing fee. However, Plaintiff was obligated for monthly payments of twenty percent (20%) of the preceding month's income credited to Plaintiff's trust account until the filing fee was paid. The Order filed October 12, 2004 also 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 in order to state specific allegations of deprivation of constitutional rights against proper defendant(s), to name as defendant(s) the individual(s) who participated in the activities alleged in his amended complaint, and to state what injury he has suffered as a result of the activities of the defendant(s). By separate Order filed October 12, 2004 (Document #6), the Director of the Arizona Department of Corrections or her designee was required to send to the Clerk of the Court payments from Plaintiff's trust account each time the amount in the account exceeds ten dollars ($10.00), until the statutory filing fee of one hundred and fifty dollars ($150.00) was paid in full. 28 U.S.C. § 1915(b)(2). AMENDMENTS TO ORIGINAL COMPLAINT On November 5, 2004, Plaintiff filed a pleading entitled "Amendments To Original Complaint" (Document #7) (Amended Complaint). In his Amended Complaint, Plaintiff attempts to make a "clarification of Defendants" with regard to Counts II and IV of his original Complaint. Id. at 1, 3. In the Court's Order filed October 12, 2004 (Document #5), Plaintiff was informed that any amended complaint that he filed must be retyped or rewritten in its entirety on the current, Court-approved form included with the Order and may not incorporate any part of the original Complaint by reference. (Document #5 at 7, 11). However, Plaintiff has ignored the Court's directive and filed an Amended Complaint which is not on a Court-approved form, and incorporates the original Complaint by reference. Indeed, Plaintiff's Amended Complaint is not capable of standing on its own without reference to the original Complaint.

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STRIKING OF COMPLAINT AND DISMISSAL OF ACTION In the Court's Order, Plaintiff was specifically cautioned that if he failed to timely comply with every provision of the Order, or any order of the Court entered in this matter, the action would be dismissed pursuant to Rule 41(b) of the Federal Rule of Civil Procedure. See Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir.) (district court may dismiss action for failure to comply with any order of the court), cert. denied. 506 U.S. 915 (1992). The Court's Order also warned that if Plaintiff failed to file the amended complaint on a current, Court-approved form, the amended complaint would be stricken, and the action dismissed without further notice to Plaintiff. Accordingly, the Clerk of the Court will be directed to strike Plaintiff's Amended Complaint from the record in this action and the action will be dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to comply with the Court's Order filed October 12, 2004, and the Clerk of Court will be directed to terminate this action. IT IS THEREFORE ORDERED: (1) That the Clerk of the Court is DIRECTED TO STRIKE FROM THE RECORD Plaintiff's "Amendments To Original Complaint" (Document #7); (2) That this action is DISMISSED WITHOUT PREJUDICE pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to comply with the Court's Order filed October 12, 2004 (Document #5). The Clerk of Court shall terminate this action.

DATED this 30th day of July, 2005.

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Case 2:04-cv-00381-SMM--VAM