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Diaz v. Hurley

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
Mar 20, 2020
No. 2:19-cv-1241 KJM KJN P (E.D. Cal. Mar. 20, 2020)

Opinion

No. 2:19-cv-1241 KJM KJN P

03-20-2020

MIGUEL ENRIQUE DIAZ, Plaintiff, v. ASSOCIATE WARDEN HURLEY, et al., Defendants.


ORDER TO SHOW CAUSE

Plaintiff is a state prisoner, proceeding pro se, with a civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

I. Background

On July 3, 2019, plaintiff was granted leave to file a complaint, along with an application to proceed in forma pauperis or pay the court's filing fee in this new action. (ECF No. 2.) On July 24, 2019, plaintiff was granted an additional 45 days in which to comply with such order. (ECF No. 6.) On August 27, 2019, plaintiff was granted another 15 days in which to file a complaint and submit his application to proceed in forma pauperis or pay the court's filing fee. (ECF No. 12.) On September 25, 2019, the undersigned recommended that this action be dismissed based on plaintiff's failure to comply with the July 3, 2019 order, despite multiple extensions of time to do so.

On January 10, 2020, the undersigned reviewed plaintiff's September 25, 2019 filing concerning his alleged inability to attend the law library. (ECF No. 17.) The undersigned denied plaintiff's motion without prejudice once plaintiff had complied with the July 3, 2019 order. (Id. at 4.) In an abundance of caution, plaintiff was granted thirty days in which to comply with the July 3, 2019 order. Plaintiff was warned that the September 25, 2019 findings and recommendations would be held in abeyance, and if plaintiff failed to comply with the July 3, 2019 order, the findings and recommendations would be forwarded to the district court for review and adoption.

Thirty days from January 10, 2020, expired on Sunday, February 9, 2020. Because the deadline ran on a Sunday, plaintiff had until Monday, February 10, 2020 in which to comply with the July 3, 2019 order. Allowing three additional days for mailing, plaintiff should have complied by February 14, 2020 at the latest. No such compliance occurred by February 14, 2020.

Rather, on February 12, 2020, plaintiff filed a document entitled, "Motion Updating Status of Complaint. . . ." (ECF No. 18.) Plaintiff declared under penalty of perjury that on February 18, 2020, the complaint would be sent by legal mail, and that his "Motion for IFP exception" would be submitted "within 3 days on 2/21/20." (ECF No. 18.)

On February 26, 2020, plaintiff's complaint was filed, signed by plaintiff on February 18, 2020. On February 28, 2020, plaintiff filed a document styled, "Motion for Imminent Danger exception for § 1915(g), exception for IFP status to be granted due to imminent danger exception," which he signed on February 21, 2020. (ECF No. 21.)

II. Discussion

This record reflects plaintiff's unwillingness to comply with court orders. Plaintiff did not seek an extension of time to file his complaint; rather, he simply pronounced he would be filing it late, despite plaintiff having been granted multiple extensions of time and ignoring the court's warning that no further extensions of time would be granted. Importantly, to date, plaintiff also failed to file an application to proceed in forma pauperis, or pay the court's filing fee. Rather, plaintiff filed a request to be exempt from the three strikes bar imposed on litigants who have sustained three strikes under 28 U.S.C. § 1915(g). Obviously, the court is unable to exempt plaintiff from the application of § 1915 where he has yet to file an application to proceed in forma pauperis. Plaintiff has received multiple extensions of time to comply with this court's initial order issued on July 3, 2019, which informed him of his obligation to file an application to proceed in forma pauperis or pay the court's filing fee. Plaintiff has failed to diligently prosecute this action, and failed to timely comply with multiple court orders. Fed. R. Civ. P. 41(b).

Accordingly, IT IS HEREBY ORDERED that within fourteen days plaintiff shall show cause why the September 25, 2019 findings and recommendations should not be forwarded to the district court for adoption based on plaintiff's failure to timely file his complaint as well as his total failure to file an application to proceed in forma pauperis or pay the court's filing fee as required by prior court orders, in violation of Rule 41(b) of the Federal Rules of Civil Procedure. Dated: March 20, 2020

/s/_________

KENDALL J. NEWMAN

UNITED STATES MAGISTRATE JUDGE w/diaz1241.osc


Summaries of

Diaz v. Hurley

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
Mar 20, 2020
No. 2:19-cv-1241 KJM KJN P (E.D. Cal. Mar. 20, 2020)
Case details for

Diaz v. Hurley

Case Details

Full title:MIGUEL ENRIQUE DIAZ, Plaintiff, v. ASSOCIATE WARDEN HURLEY, et al.…

Court:UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Date published: Mar 20, 2020

Citations

No. 2:19-cv-1241 KJM KJN P (E.D. Cal. Mar. 20, 2020)