Delbert J. Smith v. Gavin Newsom, et al.

• Court: District Court, E.D. California
• Decided: September 26, 2025
• Docket: 1:25-cv-00873
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DELBERT J. SMITH, No. 1:25-cv-00873 GSA (PC) 12 Plaintiff, ORDER GRANTING PLAINTIFF, SUA SPONTE, ADDITIONAL TIME TO FILE 13 v. NOTICE ON HOW TO PROCEED 14 GAVIN NEWSOM, et al., (ECF No. 9) 15 Defendants. PLAINTIFF’S NOTICE ON HOW TO PROCEED DUE IN FOURTEEN DAYS 16 17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983, and 18 he has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. ECF Nos. 19 1, 2. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 20 636(b)(1)(B). 21 For the reasons stated below, the Court will, sua sponte grant Plaintiff additional time to 22 inform the Court how he would like to proceed in this case. He will be given an additional 23 fourteen days to do so. 24 I. RELEVANT FACTS 25 On August 13, 2025, the Court screened Plaintiff’s complaint and it found that it 26 contained both civil rights claims under 42 U.S.C. § 1983, and habeas claims under 28 U.S.C. § 27 2254. ECF No. 9 at 9-11. As a result, the Court declined to consider Plaintiff’s in forma pauperis 28 application for the time being. Instead, Plaintiff was ordered to inform the Court whether he 1 wished to voluntarily dismiss this matter and file new separate civil rights and habeas cases, or 2 stand on the pleading as filed. Id. at 11. Given the simplicity of the choice, Plaintiff was given 3 seven days to decide and inform the Court of his decision via the notice on how to proceed form 4 that he had been sent. Id. 5 Almost six weeks have passed and Plaintiff has not filed his notice on how to proceed 6 with the Court, nor has he requested an extension of time to do so. Plaintiff has not responded to 7 the Court’s order in any way. The Court also notes for the record that the order was not returned 8 to it marked “undeliverable. Thus, it may be presumed that Plaintiff received it. See Rosenthal v. 9 Walker, 111 U.S. 185, 193 (1884); Nunley v. City of Los Angeles, 52 F.3d 792, 796 (9th Cir. 10 1995) (citing Rosenthal). 11 II. DISCUSSION 12 Plaintiff’s failure to comply with the Court’s order constitutes grounds to recommend that 13 this matter be dismissed. See Fed. R. Civ. P. 41(b); Local Rule 110. However, the Court 14 understands that at times, prisoners have legitimate reasons for not communicating with the Court 15 in a timely manner. Therefore, out of an abundance of caution, prior to recommending that this 16 matter be dismissed, the Court will, sua sponte, grant Plaintiff an additional fourteen days to 17 comply with its order issued August 13, 2025. 18 Accordingly, IT IS HEREBY ORDERED that: 19 1. On the Court’s own volition, it sua sponte, GRANTS Plaintiff additional time to file 20 his notice on how to proceed, and 21 2. Plaintiff’s notice on how to proceed shall be filed within fourteen days from the date 22 of this order. 23 Plaintiff is cautioned that absent exigent circumstances, his failure to comply with 24 this order in a timely manner is likely to result in a recommendation that this matter be 25 dismissed for failure to prosecute and that his application to proceed in forma pauperis be 26 denied as moot. 27 28 1 IT IS SO ORDERED. 2

3 Dated: September 26, 2025 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 4

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