Opinion
No. CIV S-01-2334 MCE PAN P.
February 28, 2006
ORDER TO SHOW CAUSE
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. A review of the instant action shows that plaintiff has not diligently prosecuted this case. The court possesses the discretionary authority to dismiss an action based on plaintiff's failure to diligently prosecute. Fed.R.Civ.P. 41(b). Unreasonable delay by plaintiff is sufficient to justify dismissal, even in the absence of actual prejudice to the defendant, see Moore v. Telfon Communications Corp., 589 F.2d 959, 967-68 (9th Cir. 1978); Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976), since a presumption of injury arises from the occurrence of unreasonable delay. Fidelity Philadelphia Trust Co. v. Pioche Mines Consolidated, Inc., 587 F.2d 27, 29 (9th Cir. 1978); Anderson, 542 F.2d at 524; Alexander v. Pacific Maritime Association, 434 F.2d 281, 283 (9th Cir. 1970), cert. denied, 401 U.S. 1009 (1971). Plaintiff then has the burden of showing justification for the delay and in the absence of such showing the case is properly dismissed for failure to prosecute. See Nealey v. Transportation Maritima Mexicana, S.A., 662 F.2d 1275 (9th Cir. 1980).
Therefore, plaintiff will be ordered to show cause in writing why this matter should not be dismissed for lack of prosecution. If plaintiff has any reasons why this action should not be dismissed, he shall submit them by sworn declaration of facts no later than fourteen days from the date of this order. Failure to respond to this order will result in a recommendation that this action be dismissed for lack of prosecution.
In accordance with the above, IT IS HEREBY ORDERED that within fourteen days from the date of this order plaintiff shall show cause in writing why this matter should not be dismissed for lack of prosecution. Failure to respond to this order will result in a recommendation that this action be dismissed for lack of prosecution.