Mario Louis Navarro v. Matthew Cate ( 2020 )

CIVIL MINUTES – GENERAL Case No. EDCV 12-1260 DDP (PVC) Date: December 11, 2020 Title Mario Louis Navarro v. Matthew Cate, et al. Present: The Honorable Pedro V. Castillo, United States Magistrate Judge Marlene Ramirez None Deputy Clerk Court Reporter / Recorder Attorneys Present for Plaintiff: 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 alleges that prison officials at Ironwood State Prison discriminated against him because of his Native American heritage. On August 20, 2020, the Court granted Defendants’ motion to dismiss the Third Amended Complaint (“TAC”) and dismissed the TAC with leave to amend. (Dkt. No. 266). Pursuant to the Court’s order, Plaintiff’s Fourth Amended Complaint was due by September 21, 2020. (Id.). Plaintiff requested, and was granted, an extension of time to file a Fourth Amended Complaint. (Dkt. No. 270 (Request); Dkt. No. 271 (“Order”)). The Court set October 21, 2020 as the extended deadline to file a Fourth Amended Complaint if Plaintiff wished to pursue his claims. (Id. at 2). The October 21, 2020 deadline has long since expired and Plaintiff has failed to file either a Fourth Amended Complaint or an additional request for an extension of time in which to do so. Accordingly, Plaintiff is ORDERED TO SHOW CAUSE, within twenty-one (21) days of the date of this Order, why the Magistrate Judge should not recommend that this CIVIL MINUTES – GENERAL Case No. EDCV 12-1260 DDP (PVC) Date: December 11, 2020 Title Mario Louis Navarro v. Matthew Cate, et al. action be dismissed with prejudice for failure to prosecute. Plaintiff may discharge this Order by filing either: (1) a Fourth Amended Complaint, curing the deficiencies of the Third Amended Complaint; (2) a Notice of Intention to Stand on Defective Complaint; or (3) a declaration under penalty of perjury stating why he is unable to do so. 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”). Plaintiff is cautioned that if he chooses to stand on his defective Third Amended Complaint despite having been afforded the opportunity to amend, the Magistrate Judge will recommend that the Court dismiss any defective claims under Federal Rule of Civil Procedure 12(b)(6) and allow the action to proceed only 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) (“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.”). Plaintiff is further cautioned that the Court is unlikely to grant any further continuances to file a Fourth Amended Complaint without a detailed showing of good cause, supported by evidence. 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 warned that the failure to timely file a response to this Order will result in a recommendation that this action be dismissed with prejudice for failure to prosecute and obey court orders pursuant to Federal Rule of Civil Procedure 41(b). The Clerk of the Court is directed to serve a copy of this Order upon Plaintiff at his address of record and on counsel for Defendants. IT IS SO ORDERED. 00:00 Initials of Preparer mr