Opinion
2:22-cv-00379-DOC(MAR)
03-24-2022
Phillip Lee Brock v. State of California et al
CIVIL MINUTES - GENERAL
MARGO A. ROCCONI, UNITED STATES MAGISTRATE JUDGE
Proceedings: (In Chambers) 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. To date, Plaintiff has failed to file a FAC or otherwise correspond with the Court.
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”).
Accordingly, Plaintiff is ordered to show cause in writing within twenty-one (21) days of this Order, by April 13, 2022, why this action should not be dismissed under Rule 41(b) for failure to prosecute. See Fed.R.Civ.P. 41(b).
The Court will consider any of the following three (3) options to be an appropriate response to this 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 voluntarily dismiss the action pursuant to Federal Rule of Civil Procedure 41(a). The Clerk is directed to attach a Notice of Dismissal form for Plaintiff's convenience. Failure to respond to the Court's Order will result in the dismissal of the action.
IT IS SO ORDERED.