(PC) Breedlove v. Figueroa ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KYREE BREEDLOVE, Case No. 1:18-cv-01669-DAD-BAM (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED FOR 13 v. FAILURE TO PROSECUTE 14 FIGUEROA, et al., (ECF No. 40) 15 Defendants. TWENTY-ONE (21) DAY DEADLINE 16 17 18 Plaintiff Kyree Breedlove (“Plaintiff”) is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds against 20 Defendant Figueroa for excessive force in violation of the Eighth Amendment. 21 On April 30, 2021, Defendant filed a motion for summary judgment on the grounds that 22 (1) Plaintiff failed to exhaust his administrative remedies as to his Eighth Amendment claim; and 23 (2) Plaintiff’s Eighth Amendment claim against Defendant Figueroa is barred by the favorable 24 termination rule. (ECF No. 37.) In the motion, Plaintiff was provided with notice of the 25 requirements for opposing a motion for summary judgment. Woods v. Carey, 684 F.3d 934 (9th 26 Cir. 2012); Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1988); Klingele v. Eikenberry, 849 F.2d 27 409, 411–12 (9th Cir. 1988). (ECF No. 37-1.) 28 /// 1 On June 8, 2021, the Court granted Plaintiff’s motion for an extension of time to file his 2 opposition to the summary judgment motion. (ECF No. 40.) Pursuant to that order and Federal 3 Rule of Civil Procedure 6(d), Plaintiff’s opposition or statement of non-opposition was due on or 4 before July 12, 2021. The deadline for Plaintiff to respond to Defendant’s motion for summary 5 judgment has expired, and Plaintiff has not otherwise been in contact with the Court. Plaintiff 6 will be permitted one final opportunity to show cause why this action should not be dismissed 7 with prejudice. 8 Accordingly, it is HEREBY ORDERED that Plaintiff shall show cause by WRITTEN 9 RESPONSE within twenty-one (21) days of service of this order why this action should not be 10 dismissed, with prejudice, for failure to prosecute. Plaintiff may comply with the Court’s order 11 by filing an opposition or statement of non-opposition to Defendant’s April 30, 2021 motion for 12 summary judgment. Plaintiff is warned that if he fails to comply with the Court’s order, this 13 matter will be dismissed, with prejudice, for failure to prosecute. 14 IT IS SO ORDERED. 15 16 Dated: August 2, 2021 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28