(PC)Allen v. Arias

Opinion

JAMES D. ALLEN, Case No. 1:22-cv-01502-BAM (PC) Plaintiff, ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED FOR v. FAILURE TO PROSECUTE ARIAS, et al., (ECF Nos. 60, 61) Defendants. TWENTY-ONE (21) DAY DEADLINE Plaintiff James D. Allen (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s third amended complaint against: (1) Defendant M. Rodriguez for excessive force in violation of the Eighth Amendment; (2) Defendant M. Rodriguez for assault and battery under state law; and (3) Defendant J. Anaya for failure to protect/intervene in violation of the Eighth Amendment. All parties have consented to United States Magistrate Judge jurisdiction. (ECF No. 59.) On February 6, 2025, Defendants filed a motion for summary judgment on the ground that Plaintiff failed to exhaust his administrative remedies. (ECF No. 60.) On February 18, 2025, the Court issued a second informational order providing Plaintiff with notice of the requirements for opposing a motion for summary judgment. Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1988); Klingele v. Eikenberry, 849 F.2d 409, 411–12 (9th Cir. 1988). (ECF No. 61.) Plaintiff was directed to file an opposition to Defendants’ motion for summary judgment within twenty-one (21) days from the date of service of that order, in compliance with Federal Rule of Civil Procedure 56 and Eastern District of California Local Rule 260. (Id.) That order was not returned to the Court as undeliverable. Plaintiff filed a notice of change of address on March 11, 2025. (ECF No. 63.) The deadline for Plaintiff to respond to Defendants’ motion for summary judgment has expired, and he has not otherwise been in contact with the Court. Plaintiff will be permitted one final opportunity to show cause why this action should not be dismissed without prejudice. Accordingly, it is HEREBY ORDERED that Plaintiff shall show cause by WRITTEN RESPONSE within twenty-one (21) days of service of this order why this action should not be dismissed, without prejudice, for failure to prosecute. Plaintiff may comply with the Court’s order by filing an opposition or statement of non-opposition to Defendants’ February 6, 2025 motion for summary judgment. Plaintiff is warned that if he fails to comply with the Court’s order, this matter will be dismissed, without prejudice, for failure to prosecute. IT IS SO ORDERED.

Dated: March 31, 2025 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE