Opinion
CV 23-3749 MEMF (KS)
01-08-2024
Wayne Romano Springfield v. Atascadero State Hospital et al.
The Honorable: Karen L. Stevenson, Chief United States Magistrate Judge
CIVIL MINUTES - GENERAL
Proceedings: (IN CHAMBERS) ORDER TO SHOW CAUSE RE: DISMISSAL
On May 15, 2023, Plaintiff, a California inmate housed at Elmwood Men's Facility in Milpitas, California, and proceeding pro se and in forma pauperis, filed a Complaint pursuant to 42 U.S.C. § 1983 (the “Complaint”). (Dkt. No. 1.) On June 2, 2023, the Court dismissed the Complaint with leave to amend, and on June 21, 2023, Plaintiff filed a First Amended Complaint (“FAC”). (Dkt. Nos. 5-6.) A review of Plaintiff's allegations reveals that this action arose out of injuries Plaintiff allegedly suffered when prison staff members attempted to restrain Plaintiff in order to administer medication he was refusing to take. (Dkt. No. 6 at 5-6.)
On November 20, 2023, Defendant Lopez answered the FAC and Defendant Black filed a Motion to Dismiss the FAC (“Motion”). (Dkt. Nos. 18, 19.) In a minute order dated November 21, 2023, the Court set a briefing schedule on the Motion. (Dkt. No. 21.) Pursuant to the briefing schedule, Plaintiff's deadline to file and serve an opposition to the Motion was December 21, 2023. (Id.)
More than two weeks have now passed since Plaintiff's deadline to file his opposition. Plaintiff has neither filed a response to the Motion nor requested an extension of time to do so.
Pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, an action may be subject to involuntary dismissal if a plaintiff “fails to prosecute or to comply with these rules or a court order.” Thus, the Court could properly recommend dismissal of the action for Plaintiff's failure to comply with the Court's November 21, 2023 Order setting the briefing schedule on Defendant Black's Motion. Additionally, Local Rule 7-12 provides, in pertinent part, that “[t]he failure to file any required document, or the failure to file it within the deadline, may be deemed consent to the granting or denial of [a] motion, ....” Consequently, the Court could also properly recommend that the Motion be granted based upon Plaintiff's failure to file an opposition by the Court-ordered deadline. Id.
However, in the interests of justice, Plaintiff is ORDERED TO SHOW CAUSE on or before February 7, 2024, why the Court should not recommend that the action be dismissed under Rule 41(b) of the Federal Rules of Civil Procedure and/or the Motion be granted under Local Rule 7-12. Plaintiff's response to this Order to Show Cause must include either: (1) a request for an extension of time to file an opposition accompanied by a sworn declaration that establishes good cause for both Plaintiff's failure to timely respond to the Motion and his need for additional time; or (2) a complete Opposition that fully complies with the Local Rules and the Federal Rules of Civil Procedure.
Alternatively, if Plaintiff concludes he is currently unable to comply with the deadlines necessary for prosecuting this action, Plaintiff may discharge this Order and dismiss this case without prejudice 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.
Plaintiff is expressly cautioned that his failure to respond to this Order may result in a recommendation of dismissal based on Rule 41 of the Federal Rules of Civil Procedure and/or that the Motion be granted under Local Rule 7-12.
IT IS SO ORDERED.
Initials of Preparer gr