Opinion
2:21-cv-06501-MCS (MAR)
10-25-2021
Douglas Lasance v. Warden et al.
The Honorable: MARGO A. ROCCONI, UNITED STATES MAGISTRATE JUDGE
CIVIL MINUTES - GENERAL
Proceedings: (In Chambers) ORDER TO SHOW CAUSE RE: DISMISSAL FOR LACK OF PROSECUTION
On August 3, 2021, Douglas Lasance (“Plaintiff”), proceeding pro se and in forma pauperis, constructively filed a Complaint (“Complaint”) pursuant to 42 U.S.C. § 1983 (“section 1983”). ECF Docket No. (“Dkt.”) 1 at 1. On September 3, 2021, the Court issued an Order Dismissing the Complaint with Leave to Amend (“ODLA”), granting Plaintiff thirty (30) days to file a First Amended Complaint (“FAC”) addressing the deficiencies identified in the Complaint. Dkt. 8 at 9- 10. To date, Plaintiff has not filed a First Amended Complaint, nor requested an additional extension of time.
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”).
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 3, 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.
NOTICE OF DISMISSAL PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 41(a) or ©
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).
Date
Signature of Attorney/Party
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.