Opinion
CV 22-0167 DOC (PVC)
10-05-2022
Darrell H. Pettus v. Officer A. Serrano, et al.
CIVIL MINUTES - GENERAL
PROCEEDINGS: [IN CHAMBERS] ORDER TO SHOW CAUSE WHY THE MAGISTRATE JUDGE SHOULD NOT RECOMMEND THAT THIS ACTION BE DISMISSED FOR FAILURE TO PROSECUTE
PRESENT: THE HONORABLE PEDRO V. CASTILLO, MAGISTRATE JUDGE
On December 29, 2021, Plaintiff Darrell Heiman Pettus, Jr., a California state prisoner proceeding pro se, constructively filed a civil rights action pursuant to 42 U.S.C. § 1983. (“Complaint,” Dkt. No. 1). On March 10, 2022, the Court dismissed the Complaint with leave to amend due to defects in pleading. (“ODLA,” Dkt. No. 11). On March 30, 2022, Plaintiff filed a First Amended Complaint, (“FAC,” Dkt. No. 13), which the Court dismissed with leave to amend on April 21, 2022. (“ODLA FAC,” Dkt. No. U).
On May 17, 2022, Plaintiff filed a Second Amended Complaint, (“SAC,” Dkt. No. 21), which the Court similarly dismissed with leave to amend on July 1, 2022. (“ODLA SAC,” Dkt. No. 24). In dismissing the SAC, the Court noted that even though “the SAC suitably clarifies Plaintiffs Eighth Amendment claims, it repeats several of the same pleading errors that required dismissal of the original Complaint and the FAC.” (Id. at 2). In gr anting leave to amend, the Court stated that it would allow Plaintiff “one final opportunity to state a claim,” but cautioned that “if the allegations of the Third Amended Complaint do not correct the pleading errors identified in this Order, the Court will recommend dismissal of some or all of his claims without further leave to amend.” (Id.) (emphasis omitted).
Pursuant to the ODLA SAC, Plaintiff was required to file “either a Third Amended Complaint or a Notice of Intention to Stand on Defective Second Amended Complaint within thirty days of the date of [the] Order,” or by July 31, 2022. (Id. at 27). The Court further warned Plaintiff that the failure to meet the Court's deadline “will result in a recommendation that this action be dismissed” for failure to prosecute and obey court orders pursuant to Federal Rule of Civil Procedure 41(b). (Id.). On July 22, 2022, Plaintiff requested an extension of time to file a Third Amended Complaint, (Dkt. No. 25), which the Court granted on July 27, 2022. (“Extension Order,” Dkt. No. 26). The Extension Order continued the deadline for filing a Third Amended Complaint or a Notice of Intention to Stand on Defective Second Amended Complaint to September 6, 2022. (Id. at 1).
The September 6, 2022 extended deadline has expired and Plaintiff has failed to file either document required by the ODLA SAC; nor has he requested an extension of time in which to do so. Accordingly, Plaintiff is ORDERED TO SHOW CAUSE, within twenty-one (21) days of the date of this Order, why the Magistrate Judge should not recommend that this action be dismissed for failure to prosecute. See Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 891 (9th Cir. 2019) (“‘The failure of the plaintiff eventually to respond to the court's ultimatum -- either by amending the complaint or by indicating to the court that it will not do so -- is properly met with the sanction of a Rule 41(b) dismissal.'”) (quoting Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th Cir. 2004) (emphasis in original)). Plaintiff may discharge this Order by filing one of the following documents: (1) a Third Amended Complaint, curing the deficiencies identified in the ODLA SAC; (2) a Notice of Intention to Stand on Defective Second Amended Complaint; or (3) a declaration under penalty of perjury stating why he is unable to do so.
If Plaintiff no longer wishes to pursue his claims, he may request a voluntary dismissal of this action pursuant to Federal Rule of Civil Procedure 41(a). A Notice of Dismissal form is attached for Plaintiffs convenience. Plaintiff is again warned that the failure to timely file a response to this Order by the Court's deadline will result in a recommendation that this action be dismissed for failure to prosecute and obey court orders pursuant to Federal Rule of Civil Procedure 41(b).
The Clerk of the Corn! is directed to serve a copy of this Order upon Plaintiff at his addr ess of record.
IT IS SO ORDERED.