Larnell Lowe v. United States

Opinion

CIVIL MINUTES – GENERAL

Case No. 2:21-cv-7593-FLA (MAR) Date: November 9, 2021 Title Present: The Honorable: MARGO A. ROCCONI, UNITED STATES MAGISTRATE JUDGE ERICA BUSTOS N/A Deputy Clerk Court Reporter / Recorder

Attorneys Present for Plaintiffs: Attorneys Present for Defendants: N/A N/A Proceedings: (In Chambers) ORDER TO SHOW CAUSE RE: DISMISSAL FOR LACK OF PROSECUTION

On September 20, 2021, Petitioner constructively1 filed the instant Petition for Writ of Habeas Corpus pursuant to U.S.C. § 2241 (“section 2241”). ECF Docket No. (“Dkt.”) 1. On September 30, 2021, the Court issued an Order to Show Cause Re: Why this Action Should Not be Dismissed for Lack of Jurisdiction (“OSC”). Dkt. 3. To date, Plaintiff has not responded to the Court’s OSC.

Accordingly, Plaintiff is ordered to show cause in writing within twenty-one (21) days of this Order, by November 30, 2021, why this action should not be dismissed without prejudice for lack of jurisdiction, and failure to prosecute and obey Court orders. The Court will consider any of the following two (2) options to be an appropriate response to this OSC:

(1) Plaintiff shall elect one of the three (3) options from the Court’s September 30, 2021 OSC; or (2) Plaintiff shall provide the Court with an explanation as to why he has failed to respond to the Court’s September 30, 2021 OSC.

The Court warns Petitioner that failure to timely respond as directed in this Order will result in dismissal of this action without prejudice for lack of jurisdiction, and failure to prosecute and obey Court orders.

IT IS SO ORDERED. : Initials of Preparer eb

1 Under the “mailbox rule,” when a pro se prisoner gives prison authorities a pleading to mail to court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010). Because petitioner did not date the instant Petition when he signed it, the Court cannot determine the constructive filing date in that manner. However, the envelope in which the Petition was mailed was postmarked on September 20, 2021, so the Court uses that as the constructive filing date.