Opinion
2:22-cv-00379-DOC-MAR
05-02-2022
Phillip Lee Brock v. State of California et al
CIVIL MINUTES - GENERAL
HONORABLE: MARGO A. ROCCONI, UNITED STATES MAGISTRATE JUDGE
Proceedings: (In Chambers) SECOND ORDER TO SHOW CAUSE RE: DISMISSAL FOR LACK OF PROSECUTION
On January 7, 2022, Phillip Lee Brock (“Plaintiff”), proceeding in forma pauperis (“IFP”) and pro se, constructively filed a Complaint (“Complaint”) against the “State of California/Valley State Prison Healthcare” (“Defendant”). ECF Docket No. (“Dkt.”) 1 at 3. On February 4, 2022, the Court dismissed the Complaint with leave to amend (“ODLA”), granting Plaintiff until March 7, 2022, to either: (1) file a First Amended Complaint (“FAC”); (2) file a notice that he intends to stand on the allegations in the Complaint; or (3) voluntarily dismiss the action. Dkt. 6 at 8-10. The ODLA cautioned Plaintiff that failure to timely file a response to the ODLA “may result” in the dismissal of the Complaint for failure to prosecute. Id.
Under the “mailbox rule, ” when a pro se inmate gives prison authorities a pleading to mail to court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (citation omitted); Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (stating the “mailbox rule applies to § 1983 suits filed by pro se prisoners”).
On March 24, 2022, this Court issued an Order to Show Cause (“OSC”) giving Plaintiff until April 13, 2022, to show why this action should not be dismissed for failure to prosecute. Dkt. 7. Plaintiff was warned that, “[f]ailure to respond to the Court's Order will result in the dismissal of the action.” Id. (emphasis added).
To date, Plaintiff has not filed a FAC or otherwise responded to the Court's March 24, 2022, OSC. Accordingly, Plaintiff must respond to the Court with one (1) of the three (3) options listed in the OSC:
(1) Plaintiff shall file a First Amended Complaint that addresses the deficiencies identified in the Court's February 4, 2022 ODLA;
(2) Plaintiff shall provide the Court with an explanation as to why he has failed to file a First Amended Complaint; or
(3) Plaintiff may request a voluntarily dismissal of the action pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court is directed to attach a Notice of Dismissal form for Plaintiff's convenience.Dkt. 9.
Plaintiff must comply within fourteen (14) days of this Order, by May 16, 2022, or this action will be dismissed for failure to prosecute.
IT IS SO ORDERED.