Opinion
CV 20-10093-JWH (AGR)
04-04-2024
OMAR AGEEL, Plaintiff, v. R.C. JOHNSON, Warden, et al., Defendants.
ORDER TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED WITHOUT PREJUDICE FOR FAILURE TO FILE FIRST AMENDED COMPLAINT
ALICIA G. ROSENBERG UNITED STATES MAGISTRATE JUDGE
For the reasons discussed below, the court orders Plaintiff to show cause in writing, on or before May 6, 2024, why this Court should not recommend dismissal without prejudice of this action for failure to file a First Amended Complaint. The filing of a First Amended Complaint on or before May 6, 2024, shall be sufficient to discharge this order to show cause.
The District Court issued an Order Accepting the Findings and Recommendation in the Report and Recommendation (“Report”) issued on Defendants' motion for summary judgment. (Dkt. No. 35.) The Report recommended that the District Court grant Defendants' motion for summary judgment on the ground that Plaintiff had failed to exhaust his remedies before filing this lawsuit.
In general, dismissal without prejudice is appropriate when a prisoner files a civil rights lawsuit before exhausting his remedies. Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006).
The District Court's Order observed that, after issuance of the Report, the Ninth Circuit issued a decision in Saddozai v. Davis, 35 F.4th 705 (9th Cir. 2022). That decision indicated that dismissal of an amended complaint after the exhaustion requirement was satisfied or no longer applied would not be appropriate. Id. at 708-10.
Because Plaintiff indicated that he exhausted his remedies after the filing of the complaint, the District Court granted Plaintiff leave to file a First Amended Complaint within 30 days after entry of the Order on September 28, 2022. (Dkt. No. 43.) The First Amended Complaint should state all of Plaintiff's claims and add facts regarding exhaustion.
Plaintiff did not file a timely First Amended Complaint.
ORDER TO SHOW CAUSE
IT IS THEREFORE ORDERED that, on or before May 6, 2024, Plaintiff shall show cause, if there be any, in writing why this Court should not recommend dismissal without prejudice of this action for failure to file a timely First Amended Complaint.
The filing of a First Amended Complaint on or before May 6, 2024, shall be sufficient to discharge this order to show cause. The Clerk is DIRECTED to send a blank civil rights complaint form to Plaintiff and, for reference, Dkt. No. 1.
If Plaintiff does not file a First Amended Complaint by May 6, 2024, or otherwise respond in writing to this Order to Show Cause by May 6, 2024, the court may recommend that this action be dismissed without prejudice.