Opinion
2:21-cv-05593-DMG-PD
01-14-2022
Alex McGinnis v. R.C. Johnson, et al.
Present: The Honorable: Patricia Donahue, U.S. Magistrate Judge
CIVIL MINUTES-GENERAL
Proceedings: (In Chambers) Order to Show Cause Re: Failure to File a Third Amended Complaint or Notice of Dismissal
On November 18, 2021, the Court screened Plaintiff's Second Amended Complaint pursuant to 28 U.S. Code § 1915A. Plaintiff, a California state prisoner proceeding pro se, alleges that Defendants Warden R.C. Johnson, Dr. Randall Caldron, Dr. S. Shiesha and Dr. Baniga have negligently denied him medical treatment for hepatitis C since 2014. [Dkt. No. 10 at 6.]
The Court dismissed the Second Amended Complaint for failure to comply with the pleading standard of Rule 8 of the Federal Rules of Civil Procedure and for failure to state a claim because negligence does not rise to the required deliberate indifference under the Eighth Amendment. The Court granted Plaintiff leave to file a Third Amended Complaint (the “TAC”) no later than December 17, 2021, and advised him that if he did not intend to proceed in this action, he could expedite matters by filing a Notice of Dismissal. [Dkt. No. 18.]
As of the date of this Order, Plaintiff has failed to file an amended complaint or notice of dismissal. Pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, an action may be subject to involuntary dismissal if a plaintiff “fails to prosecute or to comply with these rules or a court order.” Fed.R.Civ.P. 41(b). Accordingly, the Court could properly recommend dismissal of the action for Plaintiff's failure to timely comply with the Order of the Court dated November 18, 2021.
However, in the interests of justice, Plaintiff is ORDERED TO SHOW CAUSE on or before February 18, 2022, why this Court should not recommend that this action be dismissed for the failure to prosecute.
Plaintiff may discharge this Order by filing:
(1) a request setting forth good cause for an extension of time to file an amended complaint, and a declaration signed under penalty of perjury, explaining why he failed to comply with the Order; or
(2) an amended complaint.
Alternatively, if Plaintiff does not wish to pursue this action, he may file the Notice of Voluntary Dismissal. The Clerk is directed to provide Plaintiff with a Central District of California Civil Rights Complaint Form (CV-66) and a Notice of Dismissal (CV-09).
Plaintiff is advised that the failure to timely comply with this order may result in the dismissal of this case pursuant to Fed.R.Civ.P. 41(b) and Local Rule 41-1.
IT IS SO ORDERED.
Attachments:
--Central District of California Civil Rights Complaint Form, CV-66
--Notice of Dismissal, CV-09