(PC) Eddington v. Jackson

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MELVIN LAVERN EDDINGTON, JR., Case No. 1:21-cv-01165-HBK (PC) 12 Plaintiff, ORDER TO SHOW CAUSE

13 v. SEPTEMBER 18, 2023, DEADLINE 14 K. JACKSON, J. SMITH, P. ROGAN, M. MONTOYA, B. RODRIGUEZ, C. 15 GONZALES, M. JOHNSON, and S. MAGDALENO, 16 Defendants. 17 18 Plaintiff Melvin Eddington, a state prisoner, initiated this action by filing a pro se civil 19 rights complaint under 42 U.S.C. § 1983. (Doc. No. 1, “Complaint”). On July 13, 2023, the 20 undersigned screened Plaintiff’s Complaint and found it stated a cognizable Eighth Amendment 21 excessive force claim against Defendants Jackson, Smith, Rogan, Montoya, Rodriguez, Gonzalez, 22 Johnson, and Magdaleno in their individual capacities but failed to state any other claim. (See 23 generally Doc. No. 9). The Court directed Plaintiff to deliver to correctional officials for mailing 24 no later than August 14, 2023: (1) an amended complaint; (2) a notice under Rule 41 that he 25 intends to stand on the Complaint as screened thereby voluntarily dismissing the Fourteenth 26 Amendment and official capacity claims; or (3) a notice that he intends to stand on his Complaint. 27 (Id. at 9 ¶ 1). The Court expressly warned Plaintiff that if he “fails to timely comply with this 28 Court Order or seek an extension of time to comply, the Court will recommend the district court 1 | dismiss this action for Plaintiff's failure to comply with this Court Order and prosecute this 2 | action.” (/d. at §] 2). Enough time has passed to account for mailing from the August 14, 2023 3 | deadline! and Plaintiff has not elected any of the three options or otherwise moved for an 4 | extension of time. (See generally docket). 5 Federal Rule of Civil Procedure 41(b) permits courts to involuntarily dismiss an action 6 | when a litigant fails to prosecute an action or fails to comply with a court order. See Fed. R. Civ. 7 | P.41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 (9th Cir. 2019) (citations 8 | omitted); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) 9 | (‘[T]he consensus among our sister circuits, with which we agree, is that courts may dismiss 10 | under Rule 41(b) sua sponte, at least under certain circumstances.”). Local Rule 110 similarly 11 | permits courts to impose sanctions on a party who fails to comply with a court order. The Court 12 | will construe Plaintiff’s failure to respond to this Order as his intention to abandon this action. 13 Accordingly, it is hereby ORDERED: 14 No later than September 18, 2023, Plaintiff shall deliver to correctional officials for 15 | mailing, his response to the Court’s July 13, 2023 Order, or show cause why the Court should not 16 | recommend that this case be dismissed without prejudice for Plaintiff's failure to prosecute this 17 | action and/or his failure to timely comply with the Court’s July 13, 2023 Order. 18 | Dated: _ August 29, 2023 Mihaw. Mh. Bareh Zaskth 20 HELENA M. BARCH-KUCHTA 1 UNITED STATES MAGISTRATE JUDGE

22 23 24 25 26 27 28 "Fourteen (14) days has elapsed from the deadline.