Opinion
1:12-cv-01652-BAM-HC
01-08-2013
STEFAN E. EVANS, Petitioner, v. SOTO, Warden, Respondent.
ORDER TO PETITIONER TO SIGN AND RETURN THE CONSENT OR DECLINE
FORM WITHIN TWENTY-ONE (21) DAYS OF SERVICE, OR FACE DISMISSAL
OF THE ACTION WITHOUT PREJUDICE FOR PETITIONER'S FAILURE
TO COMPLY WITH A COURT ORDER (DOCS. 3, 5)
ORDER TO THE CLERK TO SEND TO PETITIONER
WITH THIS ORDER ANOTHER ORDER RE: CONSENT OR REQUEST FOR REASSIGNMENT
PETITIONER'S DEADLINE: TWENTY-ONE (21) DAYS AFTER THE DATE OF SERVICE OF THIS ORDER
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 303. Pending before the Court is the petition, which was filed on October 9, 2012.
I. Background
Petitioner filed his petition and a motion for a sixty-day extension of time within which to file a first amended petition. Petitioner's motion for an extension of time was denied on December 17, 2012.
On October 10, 2012, an order issued from this Court to Petitioner to complete and return to the Court within thirty (30) days a form indicating whether Petitioner consented or declined to the jurisdiction of the Magistrate Judge to conduct all further proceedings in this case. (Doc. 3-1.) On the same date, the order was served by mail on Petitioner at the address listed in the docket. Over thirty days passed without Petitioner's responding to the Court's order as directed.
On November 21, 2012, another order issued from this Court to Petitioner to complete and return to the Court within thirty (30) days a form indicating whether or not Petitioner consented or declined to the jurisdiction of the Magistrate Judge to conduct all further proceedings in this case. (Doc. 5.) On the same date, the order was served by mail on Petitioner at the address listed in the docket. Over thirty (30) days passed, but Petitioner did not respond to the Court's order as directed.
Both the orders informed Petitioner that the form must be completed and returned regardless of the choice exercised by any other party. (Doc. 3-1 at 1; doc. 5.)
II. Order to Complete Form or Suffer Dismissal of the Proceeding
Petitioner has failed to comply with the Court's repeated orders to complete and sign a form concerning consent or request for reassignment.
A failure to comply with an order of the Court may result in sanctions, including dismissal, pursuant to the inherent power of the Court, federal statute, and the Federal Rules of Civil Procedure. Fed. R. Civ. P. 41(b), 11; Local Rule 110; Chambers v. NASCO, Inc., 501 U.S. 31, 42-43 (1991).
Petitioner is being given one more opportunity to complete and sign one section of the consent form and to return the form to the Court. Petitioner is INFORMED that if he fails to complete, sign, and return the form within twenty-one days after service of this order, the instant proceeding will be dismissed without prejudice for Petitioner's failure to comply with an order of the Court.
Accordingly, it is hereby ORDERED that Petitioner is GRANTED twenty-one (21) days from the date of service of this order to complete, sign, and return the consent or decline portion of the Court's order re: consent or request for reassignment.
IT IS SO ORDERED.
Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE