Opinion
5:20-cv-01218-CJC (MAA)
10-25-2021
Narvis Nonnette v. Gavin Newsom et al.
Present: The Honorable MARIA A. AUDERO, United States Magistrate Judge
CIVIL MINUTES - GENERAL
Proceedings (In Chambers):Order to Show Cause Regarding Plaintiffs Failure to Respond to Court Order
On August 25, 2021, the Court issued an Order denying Plaintiff Narvis Nonnette's (“Plaintiff) “Motion to Correct and Oppose the Court's Memorandum and Order.” (Order, ECF No. 38.) The Order gave Plaintiff three options:
. Option 1 - Option 1 - File a Third Amended Complaint. Plaintiff may file a Third Amended Complaint, the deadline for which the Court sua sponte extends to September 24, 2021
. Option 2 - Proceed with the Second Amended Complaint. Plaintiff may proceed with the Second Amended Complaint in its current form. To do so, Plaintiff must file a statement with the Court, no later than September 24, 2021, stating that he wishes to select Option 2 and proceed on the Second Amended Complaint, despite the infirmities described in the Screening Order.
Plaintiff is cautioned that, for the reasons detailed in the Screening Order, the entire Second Amended Complaint is insufficiently pled. If Plaintiff selects Option 2, it will be viewed by the Court as the inability to cure the defects identified in the Screening Order. As such, the Court will recommend dismissal with prejudice of this lawsuit to the District Judge. Dismissal with prejudice means that Plaintiff will be given no further opportunities to amend,
this case will be closed, and Plaintiff will not be able to assert this same claim in a new case.
. Option 3 - File Objection with the District Judge. Plaintiff may file a motion for review of this order to the District Judge pursuant to Rule 72(a) and this District's Local Civil Rule 72-2. Such a motion for review must “designate the specific portions of the ruling objected to and stat[e] the grounds for the objection.” CD. Cal. L.R. 72-2.1. A motion for review must be filed within fourteen days of service of the order. Id. As Plaintiff receives service by mail, this deadline is extended by three days. See Fed. R. Civ. P. 6(d).
. Option 4 - Voluntary Dismissal. Plaintiff is not required to proceed with this lawsuit, especially since a complaint dismissed for failure to state a claim without leave to amend may count as a “strike” for purposes of the in forma pauperis statute, 28 U.S.C. § 1915(g). Instead, Plaintiff voluntarily may dismiss this action pursuant to Rule 41(a) using the attached Notice of Voluntary Dismissal form.
Plaintiff is advised that failure to respond to this order by September 24, 2021 will result in a recommendation that the lawsuit be dismissed for failure to prosecute and/or comply with court orders. See CD. Cal. L.R. 41-1.(Id. at 5-6.)
Inmates who have accumulated three of more “strikes” are not permitted to bring a civil lawsuit or appeal a judgment in a civil action in forma pauperis-that is, without prepayment of the filing fee-unless the inmate is under imminent danger of serious physical injury. See 28 U.S.C. § 1915(g). Instead, inmates with three or more “strikes” generally must pay their full filing fee upfront in order to file a civil lawsuit or appeal a civil judgment.
To date, Plaintiff has not responded to the Order. Plaintiff is ORDERED TO SHOW CAUSE by November 24, 2021 why the Court should not recommend that the lawsuit be dismissed for failure to comply with a Court order. If Plaintiff files a response to the Order on or before that date, the Order to Show Cause will be discharged, and no additional action need be taken.
Plaintiff is advised that failure to comply with this order will result in a recommendation that the lawsuit be dismissed without prejudice for failure to prosecute and/or comply with court orders. See C.D. Cal. L.R. 41-1.
It is so ordered.
Attachment: Form Notice of Voluntary Dismissal