Lordell Jones v. Jeffrey Haga

• Court: District Court, C.D. California
• Decided: May 7, 2020
• Docket: 5:18-cv-02574
• Status: Unknown

Opinion

CIVIL MINUTES – GENERAL Case No. EDCV 18-2574 AB (PVC) Date: May 7, 2020 Title Lordell Jones v. Jeffrey Haga, et al.

Present: The Honorable Pedro V. Castillo, United States Magistrate Judge

Marlene Ramirez None Deputy Clerk Court Reporter / Recorder Attorneys Present for Plaintiffs: Attorneys Present for Defendants: None None PROCEEDINGS: [IN CHAMBERS] ORDER TO SHOW CAUSE WHY THE MAGISTRATE JUDGE SHOULD NOT RECOMMEND THAT THIS ACTION BE DISMISSED FOR FAILURE TO PROSECUTE Plaintiff, a California state prisoner proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983. (“Complaint,” Dkt. No. 1). The Court subsequently issued an Order Dismissing Complaint with Leave to Amend due to the Complaint’s various pleading defects. (“ODLA,” Dkt. No. 27). Plaintiff was required to file an amended complaint by April 20, 2020 if he still wished to pursue this action. (See id. at 15). The Court expressly warned Plaintiff that the failure to file an amended complaint by the Court’s deadline would result in a recommendation that this action be dismissed with prejudice for failure to prosecute. (See id.at 17). However, as of today, Plaintiff has failed to file an amended complaint or otherwise communicate with the Court. Accordingly, Plaintiff is ORDERED TO SHOW CAUSE,within fourteen (14) days of the date of this Order, why the Magistrate Judge should not recommend that this action be dismissed with prejudice for failure to prosecute. Plaintiff may discharge this Order by filing either: (1) a First Amended Complaint, curing the deficiencies of the initial Complaint; (2) a notice of Plaintiff’s intention to stand on the defective claims in his original Complaint; or (3) a declaration under penalty of perjury stating why he is unable to do so. CIVIL MINUTES – GENERAL Case No. EDCV 18-2574 AB (PVC) Date: May 7, 2020 Title Lordell Jones v. Jeffrey Haga, et al.

When a plaintiff chooses to stand on a defective complaint despite having been afforded the opportunity to amend, the district court should dismiss any defective claims under Federal Rule of Civil Procedure 12(b)(6) and allow the action to proceed on the surviving claims, if any, that sufficiently state a claim. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th Cir. 2004). Plaintiff is cautioned that if he elects to stand on the defective claims in his original Complaint, the Magistrate Judge will recommend that the Court dismiss some or all of his claims for the reasons stated in the ODLA. See McCalden v. California Library Ass’n, 955 F.2d 1214, 1224 (9th Cir. 1992) (a plaintiff granted leave to amend a pleading “may elect to stand on her pleading and appeal”); Edwards, 356 F.3d at 1065 (“When the plaintiff timely responds with a formal notice of his intent not to amend, the threatened dismissal merely ripens into a final, appealable judgment.”). Id. If Plaintiff no longer wishes to pursue his claims, he may request a voluntary dismissal of this action pursuant to Federal Rule of Civil Procedure 41(a). A Notice of Dismissal form is attached for Plaintiff’s convenience. Plaintiff is again warned that if he does not file one of the three documents described above by the Court’s deadline, the Magistrate Judge will recommend that this action be dismissed with prejudice for failure to prosecute and obey court orders pursuant to Federal Rule of Civil Procedure 41(b). See Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 891 (9th Cir. 2019) (“‘The failure of the plaintiff eventually to respond to the court’s ultimatum -- either by amending the complaint or by indicating to the court that it will not do so -- is properly met with the sanction of a Rule 41(b) dismissal.’”) (quoting Edwards, 356 F.3d at 1065) (emphasis in original). The Clerk of the Court is directed to serve a copy of this Order upon Plaintiff at his address of record. IT IS SO ORDERED. 00:00 Initials of Preparer mr