Opinion
CIVIL MINUTES - GENERAL
JACQUELINE CHOOLJIAN, Magistrate Judge.
Proceedings: (IN CHAMBERS)
ORDER TO SHOW CAUSE RE DISMISSAL
On August 19, 2014, plaintiff, Shawne Fletcher ("plaintiff"), who is in custody, is proceeding pro se, and has been granted leave to proceed in forma pauperis, filed a Civil Rights Complaint ("Original Complaint") pursuant to 42 U.S.C. § 1983 ("Section 1983") with attached exhibits against the California Department of Corrections and Rehabilitation ("CDCR") and Warden Cynthia Tampkins. Plaintiff sued defendant Tampkins in her individual and official capacities, and sought monetary and injunctive relief from both defendants.
As plaintiff is a prisoner proceeding in forma pauperis on a civil rights complaint against governmental defendants, this Court screened the Original Complaint to determine if the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A; 42 U.S.C. § 1997e(c).
On September 19, 2014, this Court issued an order ("September Order") advising plaintiff that the Original Complaint was deficient for reasons described in the September Order and affording plaintiff an opportunity to file a First Amended Complaint if he wished to proceed with this action. The September Order further expressly cautioned "that the failure timely to file a First Amended Complaint may result in the dismissal of this action with or without prejudice on the grounds set forth above and/or for failure diligently to prosecute."
The District Judge subsequently adopted the September Order and dismissed the Original Complaint.
On December 4, 2014, plaintiff filed a First Amended Complaint, naming the CDCR and multiple new CDCR officials (not including defendant Tampkins) as defendants. Plaintiff sued such new individual defendants in both their individual and official capacities, and sought monetary and injunctive relief from all defendants.
Specifically, the new individual defendants named were: (1) M.D. Stainer; (2) Jeffrey A. Beard; (3) Martin Hoshino; (4) Kelly Harrington; (5) Kathleen Allison; (6) Vince Cullen; (7) Laurie Maurino; (8) Natalie Fransham; (9) David Skaggs; and (10) Jane Soria.
On April 9, 2015, this Court screened the First Amended Complaint and issued an order ("April Order") advising plaintiff that the First Amended Complaint was deficient for reasons described in the April Order, and affording plaintiff an opportunity to file a Second Amended Complaint by not later than April 23, 2015, if he wished to proceed with the action. The April Order further expressly cautioned that "plaintiff's failure timely to file a Second Amended Complaint may result in the dismissal of this action with or without prejudice on the grounds set forth above and/or for failure diligently to prosecute." Court records reflect that the April Order was sent to plaintiff at his then address of record in Norco, California ("Norco Address") on the date it was issued - April 9, 2015 - and that it was not returned as undeliverable.
The District Judge subsequently adopted the April Order and dismissed the First Amended Complaint.
Plaintiff's current address of record is in Chino, California ("Chino Address").
As the deadline set in the April Order to file a Second Amended Complaint expired, and plaintiff did not file a Second Amended Complaint, did not seek an extension of time, and did not file a notice of intent not to amend by such deadline, the Magistrate Judge, on May 7, 2015, issued an Order to Show Cause Re Dismissal ("First OSC"), directing plaintiff, by May 21, 2015, to show cause in writing why this action should not be dismissed based upon the deficiencies in the First Amended Complaint which were identified in the April Order, and/or plaintiff's failure to prosecute this action. The First OSC expressly cautioned plaintiff that the failure timely to comply with the First OSC and/or to show good cause would result in the dismissal of this action based upon the deficiencies in the First Amended Complaint which were identified in the April Order, plaintiff's failure to prosecute this action, and/or plaintiff's failure to comply with the First OSC. Court records reflect that the First OSC was sent to plaintiff at his then address of record, the Norco Address, on the date it was issued - May 7, 2015 - and that it was not returned as undeliverable.
Since plaintiff failed to file a response to the First OSC, and the deadline to do so had expired, the District Judge, on June 9, 2015, dismissed the action based upon plaintiff's failure to prosecute and failure to comply with the First OSC ("June Order") and directed that judgment be entered accordingly.
Attachment
The Clerk of the Court entered the June Order and Judgment on June 9, 2015, and the case was closed. Court records reflect that the June Order and Judgment were sent to plaintiff at his then address of record, the Norco Address, on June 9, 2015, and that they were not returned as undeliverable.
On June 29, 2015, plaintiff filed a "Motion Per F.R.C.P. Rule 59(e)" with supporting declaration (collectively "Plaintiff's Motion") which essentially asked the Court to reconsider the June Order and to reopen the action because plaintiff assertedly never received the April Order or the First OSC. On October 7, 2015, the District Judge (1) granted Plaintiff's Motion; (2) vacated the Judgment; (3) directed the Clerk to reopen this action and forthwith to re-serve plaintiff with the April Order and related attachments; and (4) granted plaintiff leave to file a Second Amended Complaint which comports with the April Order within twenty (20) days of the entry of such order ("October Order"). The October Order further expressly cautioned plaintiff in bold-face print that the failure timely to file a Second Amended Complaint may result in the dismissal of this action with or without prejudice for failure diligently to prosecute. To date, although the foregoing deadline has expired, plaintiff has failed to file a Second Amended Complaint or to seek an extension of time to do so.
IT IS ORDERED that the plaintiff shall show cause in writing, by not later than November 30, 2015, why this action should not be dismissed based upon plaintiff's failure to prosecute. If plaintiff no longer wishes to pursue this action, he may expedite matters by instead signing and returning the attached Notice of Dismissal by the foregoing deadline.
Plaintiff is cautioned that the failure to comply with this order and/or to show good cause, will result in the dismissal of this action with or without prejudice based upon plaintiff's failure to prosecute this action and/or plaintiff's failure to comply with the Court's order.
IT IS SO ORDERED.