(PC) Evans v. Diaz

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 DAVID ARKEEM EVANS, Case No. 1:22-cv-00291-KES-BAM (PC) 7 Plaintiff, ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED FOR 8 v. FAILURE TO PROSECUTE 9 DIAZ, et al., (ECF No. 63) 10 Defendants. TWENTY-ONE (21) DAY DEADLINE 11 12 Plaintiff David Arkeem Evans (“Plaintiff”) is a former state prisoner proceeding pro se in 13 this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s first 14 amended complaint against: (1) Defendants E. Diaz and Ramirez for excessive force in violation 15 of the Eighth Amendment for spraying Plaintiff with OC spray; (2) Defendant Reed for excessive 16 force in violation of the Eighth Amendment for ramming Plaintiff with his riot shield and pinning 17 Plaintiff to a desk; (3) Defendants E. Diaz and Ramirez for excessive force in violation of the 18 Eighth Amendment for applying excessively tight ankle restraints and dragging Plaintiff by the 19 chain of the shackles into the hallway; (4) Defendants Martins, E. Diaz, Ramirez, and Marin for 20 excessive force in violation of the Eighth Amendment for beating Plaintiff with batons in the 21 hallway; (5) Defendants A. Aguilar and E. Figueroa for failure to intervene in violation of the 22 Eighth Amendment; (6) Defendant Bradford for deliberate indifference to serious medical needs 23 in violation of the Eighth Amendment for refusing to admit Plaintiff to a suicide crisis bed after 24 Plaintiff swallowed two razor blades with the intent of killing himself; and (7) Defendants 25 Stanley, Arrozola, and Aguilar for unconstitutional conditions of confinement in violation of the 26 Eighth Amendment. 27 On May 2, 2024, Defendants E. Figueroa, D. Stanley, M. Arrozola, D. Marin, C. Ramirez, 28 E. Diaz, J. Bradford, J. Martins, and A. Aguilar filed a motion for summary judgment on the 1 grounds that: (1) Plaintiff’s Eighth Amendment claims of excessive force against Defendants 2 Diaz, Ramirez, Martins, and Marin, and claim of failure to intervene against Defendants Aguilar 3 and Figueroa, are barred by Heck v. Humphrey, 512 U.S. 477 (1994); and (2) Plaintiff’s claim of 4 deliberate indifference to serious medical needs against Defendant Bradford and claim of 5 unconstitutional conditions of confinement against Defendants Stanley, Arrozola, and Aguilar are 6 not supported by the undisputed facts. (ECF No. 63.) In the motion, Plaintiff was provided with 7 notice of the requirements for opposing a motion for summary judgment. Woods v. Carey, 684 8 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1988); Klingele v. 9 Eikenberry, 849 F.2d 409, 411–12 (9th Cir. 1988). (ECF No. 63-2.) Pursuant to Local Rule 10 230(l) and Federal Rule of Civil Procedure 6(d), Plaintiff’s opposition or statement of non- 11 opposition was due on or before May 28, 2024. On June 6, 2024, Defendants filed a notice that 12 Plaintiff had not filed an opposition to the motion for summary judgment. (ECF No. 65.) The 13 deadline for Plaintiff to respond to Defendants’ motion for summary judgment has expired, and 14 he has not otherwise been in contact with the Court. Plaintiff will be permitted one final 15 opportunity to show cause why this action should not be dismissed with prejudice. 16 Accordingly, it is HEREBY ORDERED that Plaintiff shall show cause by WRITTEN 17 RESPONSE within twenty-one (21) days of service of this order why this action should not be 18 dismissed, with prejudice, for failure to prosecute. Plaintiff may comply with the Court’s order 19 by filing an opposition or statement of non-opposition to Defendants’ May 2, 2024 motion for 20 summary judgment. Plaintiff is warned that if he fails to comply with the Court’s order, this 21 matter will be dismissed, with prejudice, for failure to prosecute. 22 IT IS SO ORDERED. 23

24 Dated: June 11, 2024 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 25

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