Epperson v. Henderson Detention Center et al, No. 2:2012cv02173 - Document 51 (D. Nev. 2013)
Court Description: ORDER that all pending motions are DENIED without prejudice as moot and that this action shall be DISMISSED without prejudice for failure to state a claim upon which relief may be granted. This dismissal shall count as a "strike" for purposes of 28. U.S.C. § 1915(g). The Clerk shall enter final judgment accordingly, dismissing this action without prejudice. Signed by Judge Miranda M. Du on 6/14/13. (Copies have been distributed pursuant to the NEF - MMM)
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Epperson v. Henderson Detention Center et al Doc. 51 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 CLIFFORD EPPERSON, SR., Case No. 2:12-cv-02173-MMD-GWF 10 Plaintiff, ORDER 11 v. 12 HENDERSON DETENTION CENTER, 13 Defendants. 14 15 16 This prisoner civil rights matter comes before the Court following upon an amended complaint not having been filed within the time period allowed. 17 By an order entered on March 19, 2013 (dkt. no. 34), the Court dismissed the 18 complaint without prejudice for failure to state a claim, subject to leave to amend within 19 thirty (30) days of entry of the order. While plaintiff thereafter sought to pursue an 20 interlocutory appeal, neither the Court of Appeals nor this Court stayed the running of 21 the period for filing an amended complaint during the appeal. The Court of Appeals 22 found the appeal to be frivolous, and the appellate court ordered plaintiff to pay the filing 23 fee as well as demonstrate why the appeal should not be summarily affirmed. The 24 Court of Appeals thereafter dismissed the appeal after plaintiff did not respond to its 25 order. The appellate court’s order constituted the mandate of that court, which has 26 been spread upon the records of the Court. 27 The time for plaintiff to mail an amended complaint to the Clerk for filing expired 28 on April 19, 2013. No amended complaint has been received and filed in the interim. Dockets.Justia.com 1 Plaintiff was informed that a failure to timely mail an amended complaint to the Clerk for 2 filing that corrected the deficiencies identified in the prior order would lead to entry of a 3 final judgment of dismissal.1 4 IT IS THEREFORE ORDERED that all pending motions are DENIED without 5 prejudice as moot and that this action shall be DISMISSED without prejudice for failure 6 to state a claim upon which relief may be granted. This dismissal shall count as a 7 “strike” for purposes of 28 U.S.C. § 1915(g). 8 9 10 11 The Clerk of Court shall enter final judgment accordingly, dismissing this action without prejudice. DATED THIS 14th day of June 2013. 12 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 The inmate search feature on the detention center website reflected that plaintiff who was held on a short-duration sentence according to the papers that he filed was released from custody in April subsequent to the March 19, 2013, entry of the prior order. Plaintiff, who filed a multitude of papers in staccato fashion while in custody, has not filed any papers in this action since April 9, 2013. Nor has plaintiff provided the Clerk with written notice of his change of address as required by Local Rule LSR 2-2. It thus does not appear, as a practical matter, that the filing of an amended complaint or any other action by plaintiff in this case likely will be forthcoming in the foreseeable future. The time period for filing an amended complaint in any event has expired. Plaintiff no longer benefits from the prison mailbox rule for constructive filing via mailing after his release from custody. 2
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