Opinion
Case No.: 3:18-cv-00547-LAB-MDD
02-21-2020
LANCE WILLIAMS, CDCR #AG-2394, Plaintiff, v. O. ORTEGA, et al., Defendants.
ORDER REQUIRING PLAINTIFF TO PROSECUTE HIS CLAIMS
On December 11, Plaintiff Lance Williams filed his first amended complaint against Defendants Bowman, Bustos, Kimani, Lewis, Melgoza (erroneously sued as Malagoza), Ortega, and Valencia. All claims against Melgoza were dismissed, and Melgoza was dismissed as a party. But the amended complaint includes claims against Melgoza back, and again names Melgoza as a Defendant. All claims against Melgoza in the amended complaint are DEEMED STRICKEN, and Melgoza need not respond to them or any more claims in this action.
Another problem is that although Defendants Bowman, Bustos, Lewis, Ortega, and Valencia appeared, they have not filed an answer or moved for dismissal of the claims against them. They joined in the motion to dismiss (Docket no. 26), but that motion only requested dismissal of claims against Kimura and Melgoza. Williams has not requested entry of default against the other Defendants. See Fed. R. Civ. P. 55(a). Other than filing and serving his complaint, he has taken no other steps to prosecute his claims against them. For example, he did not request an entry of default against them, see Fed. R. Civ. P. 55(a), or move for default judgment. See Fed. R. Civ. P. 55(b)(2). Fed. R. Civ. P. 41(b) requires plaintiffs to prosecute their claims with reasonable diligence. Although the Court will not lightly dismiss a prisoner's claims for failure to prosecute, Hernandez v. Whiting, 881 F.2d 768, 771 (9 Cir. 1989), this requirement applies even to prisoners. Collins v. Pitchess, 641 F.2d 740, 742 (9 Cir. 1981) ("Every plaintiff in federal court has a responsibility to prosecute his action diligently . . . . Incarceration does not absolve a plaintiff of this responsibility.")
Williams should either dismiss his claims against these Defendants, or immediately begin prosecuting his claims against them. If he does not, these claims may be dismissed for failure to prosecute.
IT IS SO ORDERED. Dated: February 21, 2020
/s/_________
Hon. Larry Alan Burns
Chief United States District Judge