Opinion
2:21-cv-4953-FLA (MAR)
10-25-2021
Samuel Carmell Chester, Jr. v. People of the State of California Superior Court, County Ventura, et al.
Present: The Honorable: MARGO A. ROCCONI, UNITED STATES MAGISTRATE JUDGE
CIVIL MINUTES - GENERAL
Proceedings: (In Chambers) ORDER TO SHOW CAUSE: RE DISMISSAL FOR FAILURE TO PROSECUTE
On June 14, 2021, Samuel Chester (“Plaintiff”), proceeding pro se, constructively fileda Complaint (“Complaint”) pursuant to 42 U.S.C. §1983 (“section 1983”). ECF Docket No. (“Dkt.”) 1 at 3-5, 8. On September 10, 2021, the Court issued an Order Dismissing the Complaint With Leave to Amend (“ODLA”) instructing Plaintiff to either: (1) file a First Amended Complaint; (2) file a notice that he intends to stand on the allegations in the Complaint; or (3) voluntarily dismiss the action. Dkt. 11 at 14. The Court also issued an Order re: Plaintiff's failure to pay the filing fee or request to proceed in forma pauperis (“IFP”), instructing Plaintiff to either pay the fee or file the request to proceed IFP with his First Amended Complaint. Dkt. 12.
Under the “mailbox rule, ” when a pro se inmate gives prison authorities a pleading to mail to court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (citation omitted); Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (stating the “mailbox rule applies to § 1983 suits filed by pro se prisoners”).
The Court is now in receipt of Plaintiff's Request to Proceed IFP, Dkt. 14, and has granted his request. Dkt. 15. However, Plaintiff has yet to file a First Amended Complaint. Accordingly, Plaintiff is ordered to show cause in writing within twenty-one (21) days of this Order, by November 15, 2021, why this action should not be dismissed under Rule 41(b) for failure to prosecute. See Fed.R.Civ.P. 41(b).
The Court will consider any of the following three (3) options to be an appropriate response to this OSC:
1. Plaintiff shall file a First Amended Complaint that addresses the deficiencies identified in the Court's September 10, 2021 ODLA;
2. Plaintiff shall provide the Court with an explanation as to why he has failed to file a First Amended Complaint; or
3. Plaintiff may request a voluntarily dismissal of the action pursuant to Federal Rule of Civil Procedure 41(a). The Clerk is directed to attach a Notice of Dismissal form for Plaintiff's convenience.
Failure to respond to the Court's Order may result in the dismissal of the action.
IT IS SO ORDERED.
PLEASE TAKE NOTICE: (Check one)
[ ] This action is dismissed by the Plaintiff(s) in its entirety.
[ ] The Counterclaim brought by Claimant(s) ________________________________ is dismissed by Claimant(s) in its entirety.
[ ] The Cross-Claim brought by Claimants(s) ________________________________ is dismissed by the Claimant(s) in its entirety.
[ ] The Third-party Claim brought by Claimant(s) ________________________________ is dismissed by the Claimant(s) in its entirety.
[ ] ONLY Defendant(s) _______________________________________________________________________________________________ is/are dismissed from (check one) [ ] Complaint, [ ] Counterclaim, [ ] Cross-claim, [ ] Third-Party Claim brought by _______________________________.
The dismissal is made pursuant to F.R.Civ.P. 41(a) or (c).
NOTE: F.R.Civ.P. 41(a): This notice may be filed at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs.
F.R.Civ.P. 41(c): Counterclaims, cross-claims & third-party claims may be dismissed before service of a responsive pleading or prior to the beginning of trial.