Leonardo Magallon v. Bureau of Prisons

Opinion

CIVIL MINUTES – GENERAL

Case No. 2:21-cv-1540-VAP (MAR) Date: July 23, 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 February 4, 2021, Leonardo Magallon (“Plaintiff”), proceeding pro se and in forma pauperis (“IFP”), constructively filed1 a Civil Rights Complaint (“Complaint”) pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (“Bivens”), 403 U.S. 388 (1971). ECF Docket No. (“Dkt.”) 1. On March 12, 2021, the Court dismissed the Complaint with leave to amend, granting Plaintiff twenty (20) days to file a First Amended Complaint (“FAC”). Dkt. 8 at 12. On March 23, 2021, Plaintiff constructively filed a First Amended Complaint. Dkt. 10. On May 4, 2021, the Court dismissed the FAC with leave to amend, granting Plaintiff twenty-one (21) days to file a Second Amended Complaint (“SAC”). Dkt. 12 at 17.

On May 28, 2021, Plaintiff constructively filed a Motion for Extension of Time to File a Second Amended Complaint (“Motion”). Dkt. 13. On June 9, 2021, the Court granted Plaintiff’s Motion. Dkt. 14. Plaintiff’s SAC was due on July 9, 2021.

To date, Plaintiff has not filed a Second Amended Complaint.

Accordingly, Plaintiff is ordered to show cause in writing within twenty-one (21) days of this Order, by August 13, 2021, why this action should not be dismissed under Rule 41(b) for failure to prosecute. See Fed. R. Civ. P. 41(b).

The Court will consider any of the following three (3) options to be an appropriate response to this OSC:

(1) Plaintiff shall file a Second Amended Complaint that addresses the deficiencies identified in the Court’s May 4, 2021 ODLA; (2) Plaintiff shall provide the Court with an explanation as to why he has failed to file a Second Amended Complaint; or

1 Under the “mailbox rule”, when a pro se prisoner gives prison authorities a pleading to mail to the 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). CIVIL MINUTES – GENERAL

Case No. 2:21-cv-1540-VAP (MAR) Date: July 23, 2021 Title (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.

: Initials of Preparer eb UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NUMBER Plaintiff(s), v. NOTICE OF DISMISSAL PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 41(a) or (c) Defendant(s). PLEASE TAKE NOTICE: (Check one) G This action is dismissed by the Plaintiff(s) in its entirety. G The Counterclaim brought by Claimant(s) is dismissed by Claimant(s) in its entirety. G The Cross-Claim brought by Claimants(s) is dismissed by the Claimant(s) in its entirety. G The Third-party Claim brought by Claimant(s) is dismissed by the Claimant(s) in its entirety. G ONLY Defendant(s) is/are dismissed from (check one)G Complaint, G Counterclaim, G Cross-claim, G Third-Party Claim brought by . The dismissal is made pursuant to F.R.Civ.P. 41(a) or (c). Date Signature of Attorney/Party NOTE: F.R.Civ.P. 41(a): This notice may be filed at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs. F.R.Civ.P. 41(c): Counterclaims, cross-claims & third-party claims may be dismissed before service of a responsive