Opinion
2:20-8408-GW (MAR)
06-23-2021
Sydney A. Petilo v. Warden Clark
Present: 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 September 8, 2020, Sydney A. Petillo (“Plaintiff”) filed a pro se Civil Rights Complaint (“Complaint”) pursuant to 42 U.S.C. § 1983 (“section 1983”). ECF Docket No. (“Dkt.”) 1. On February 12, 2021, the Court dismissed the Complaint with leave to amend, granting Plaintiff twenty-one (21) days to file a First Amended Complaint. Dkt. 11 at 8. On March 9, 2021, the Court ordered Plaintiff to show cause why the Complaint should not be dismissed for failure to prosecute, given that he had not filed a First Amended Complaint or requested an extension of time. Dkt. 13 at 2.
On March 29, 2021, Plaintiff filed a “Motion to Dismiss with Leave to Amend” (“Motion”). Dkt. 15. On April 7, 2021, the Court asked Plaintiff to clarify whether the Motion sought to voluntarily dismiss the Complaint pursuant to Rule 41(a)(1)(A), or whether Plaintiff sought leave to amend his claims or requested relief. Dkt. 16. On April 15, 2021, Plaintiff filed an unclear “Motion for Summary Judgment, ” which the Court construed as a request for an extension of time to respond to the Court's April 7, 2021 Order. Dkt. 17. Plaintiff's response was due on May 12, 2021. Dkt. 18.
The caption of the Motion, Dkt. 17, read as follows: “Motion for Summary Judgment Motion to Extend Time.”
To date, the Court has received no response from Plaintiff.
Accordingly, Plaintiff is ordered to show cause in writing within twenty-one (21) days of this Order why this action should not be dismissed under Rule 41(b) for failure to prosecute. See Fed. R. Civ. P. 41(b); Dkt. 24 at 12-13.
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 February 12, 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 (c)
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).