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Pope v. Palmer

United States District Court, D. Nevada

September 8, 2014

KEVIN POPE, Plaintiff,
v.
JACK PALMER, et al., Defendants.

ORDER

MIRANDA M. DU, District Judge.

This prisoner civil rights action comes before the Court following upon plaintiff's failure to file an amended complaint complying with the Court's screening order as well as upon, inter alia, a motion to dismiss (dkt. no. 30) filed by defendants.

I. BACKGROUND

This action was severed from a joint action filed by three co-plaintiffs. As part of the severance, the Court directed plaintiff to file an amended complaint that, inter alia, set forth only his individual claims.

Plaintiff filed an amended complaint, which the Court thereafter screened. The Court's May 23, 2014, screening order dismissed the amended complaint with an opportunity to amend. The Court dismissed the amended complaint without prejudice because the pleading: (a) was overly prolix and thus failed to provide a short and plain statement of the grounds for relief in compliance with Rule 8(a)(2) of the Federal Rules of Civil Procedure; and (b) failed to comply with the instructions for the complaint form required under the local rules. ( See dkt. no. 26, at 2-5.) The order clearly informed plaintiff: "If plaintiff cannot provide a short and plain statement of his claims in response to this order as directed, the Court will enter final judgment dismissing the action without further advance notice." (Dkt. no. 26, at 5.)

Plaintiff filed a motion for reconsideration and a motion for appointment of counsel. The Court denied both. The order denying reconsideration stated, inter alia :

The motion for reconsideration will be denied. The May 23, 2014, screening order directed plaintiff to file an amended complaint because the prior pleading was prolix and failed to follow the instructions for the required complaint form. Nothing in the Court's screening order in the prior joined action directed plaintiff to file a prolix pleading that did not comply with the instructions. Plaintiff has filed a pleading with, inter alia, too much content notwithstanding his alleged health difficulties, limitations on law library access, and no current access to discovery. He certainly can file a pleading without excess content notwithstanding such alleged limitations. Plaintiff's pro se status does not relieve him from complying with the required pleading standards under the federal rules, the local rules, and the instructions for the required complaint form. Nothing otherwise is implied or reflected by the Court's orders herein other than that plaintiff must file a compliant pleading.
Plaintiff has been informed of the deficiencies in the current pleadings and been provided an opportunity to correct the deficiencies. If he does not do so within the extended time allowed by this order, final judgment will be entered dismissing this action without further advance notice.

(Dkt. no. 29, at 1-2.)

The extended period for mailing an amended complaint to the Clerk for filing ran through Monday, July 21, 2014.

Approximately three weeks later, on August 13, 2014, respondents filed a motion to dismiss based upon plaintiff's failure to file an amended complaint. The filing of the motion led to issuance of a Klingele minute order and delay occasioned by the briefing cycle on the motion.

Plaintiff has filed a response to the motion, as discussed further infra.

II. DISCUSSION

Plaintiff's response to the motion to dismiss further confirms that plaintiff does not intend to file an amended complaint correcting the deficiencies identified in the prior screening order. The Court denied a motion for reconsideration and extended the time to amend following that denial. That time has expired. In his opposition to the motion to ...


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