Opinion
EDCV 21-1068 RSWL (KS)
10-07-2021
Manual Herrera v. T. Jusino
PROCEEDINGS: (IN CHAMBERS) ORDER TO SHOW CAUSE RE: FAILURE TO FILE OPPOSITION TO MOTION TO DISMISS [DKT. NO. 5]
Present: The Honorable: Karen L. Stevenson, United States Magistrate Judge
CIVIL MINUTES - GENERAL
HONORABLE: KAREN L. STEVENSON, UNITED STATES MAGISTRATE JUDGE
On June 21, 2021, Petitioner, a federal prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 claiming he has not received certain sentence credits to which he was ostensibly entitled. (Dkt. No. 1 (the "Petition").) On August 5, 2021, Respondent filed a motion to dismiss the Petition on the ground that Petitioner has not exhausted his administrative remedies ("Motion"). (Dkt. No. 5.) The Motion's Proof of Service reflects that Respondent served a copy of the Motion on Petitioner by placing it hi the U.S. Mail on August 11, 2021. (Dkt. No. 9.)
According to the Court's Order Requiring Response to Petition, Petitioner's Opposition to the Motion was due within 30 days of service of the Motion, on or before September 10, 2021. (Dkt. No. 3 at 3.) More than three weeks have now passed since Petitioner's September 10, 2021 deadline. Petitioner has not filed an Opposition, sought an extension of time to do so, nor has he made any contact with the Court for more than two months. (See Dkt. No. 6.)
Local Rule 7-12 states that a party's failure to file a required document such as an opposition to a motion "may be deemed consent to the granting [ ] of the motion." Further. pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, an action may be subject to involuntary dismissal if a Petitioner "fails to prosecute or to comply with these rules or a court order." Thus, the Court may properly recommend dismissal of the action for Petitioner's failure to oppose the Motion and timely comply with the Court's orders.
However, in the interests of justice. Petitioner is ORDERED TO SHOW CAUSE on or before October 28, 2021 why the action should not be dismissed under Local Rule 7-12 and Rule 41(b) of the Federal Rules of Civil Procedure. In order to discharge this Order and proceed with this action. Petitioner must file by the October 28, 2021 deadline one of the following: (1) a complete and detailed opposition (in a maimer fully complying with the Local Rules) to the Motion to Dismiss: or (2) a request for an extension of time to file the Opposition accompanied by a sworn declaration (not to exceed 3 pages) establishing good cause for Petitioner's failure to timely respond to the Motion.
Alternatively, Petitioner may discharge this Order and dismiss this case by filing a signed document entitled a "Notice of Voluntary Dismissal" requesting the voluntary dismissal of the action without prejudice pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure.
Petitioner is cautioned that his failure to timely comply with this order will lead to a recommendation of dismissal based on Local Rule 7-12 and Rule 41 of the Federal Rules of Civil Procedure.
IT IS SO ORDERED.