Opinion
1:23-cv-00034-HBK (PC)
06-08-2023
RAYMOND CALLOWAY, Plaintiff, v. CDCR, L. LUNDY, T. VALDEZ, and H. MOSELEY, Defendants.
ORDER DIRECTING CLERK TO RESERVE SCREENING ORDER
HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE
Plaintiff Raymond Calloway is a state prisoner proceeding pro se and in forma pauperis (Doc. No. 5) in this civil rights action alleging claims under the Fourth and Eighth Amendments. (Doc. No. 1, “Complaint”). On April 25, 2023, the Court issued a screening order finding the Complaint failed to state any cognizable claim. (See generally Doc. No. 7, “Screening Order”). The Screening Order provided Plaintiff with three options to exercise within twenty-one (21) days from receipt of the April 25, 2023 Order: (1) file a First Amended Complaint (“FAC”); (2) file a notice that he intends to stand on his initial complaint subject to the undersigned recommending the district court dismiss for reasons stated in the April 25, 2023 Screening Order; or (3) file a notice to voluntarily dismiss this action, without prejudice, under Federal Rule of Civil Procedure 41(a)(1) because no defendant had yet been served. (Id. at 7-8). The Screening Order was not returned as undeliverable, and Plaintiff has not timely responded. (See generally docket). Nonetheless, on May 8, 2023, the Clerk docketed Plaintiff's Notice of Change of Address, which was signed and dated by Plaintiff on May 4, 2023. (Doc. No. 8). Due to the possibility that the Screening Order may have been delivered while Plaintiff was being transferred, the Court will direct the Clerk to reserve the Screening Order and afford Plaintiff an extension of time, until June 28, 2023, to respond to the Screening Order, before recommending dismissal of this action
Accordingly, it is ORDERED:
1. The Clerk of the Court shall reserve the April 25, 2023, Screening Order (Doc. No. 7) upon Plaintiff at his new address of record (Doc. No. 8).
2. The Court sua sponte grants Plaintiff an extension of time, until June 28, 2023, to deliver his response to the Screening Order to correctional officials for mailing.
3. If Plaintiff fails to timely respond to the Screening Order, the Court will infer that Plaintiff has elected to abandon this action and will recommend the dismissal of this action without prejudice for Plaintiff's failure to comply with a court order and prosecute this action.