(PC) Davis, Sr. v. Cloak ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EARL DAVIS SR., Case No. 1:22-cv-01632-JLT-HBK (PC) 12 Plaintiff, ORDER TO SHOW CAUSE 13 v. AUGUST 7, 2023, DEADLINE 14 PATRICK EATON, et al., 15 Defendants. 16 Plaintiff Earl Davis Sr., a state prisoner, initiated this action by filing a pro se civil rights 17 complaint under 42 U.S.C. § 1983 on December 22, 2022. (Doc. No. 1). On March 6, 2023, the 18 undersigned screened Plaintiff’s Complaint and found it failed to state a claim. (Doc. No. 11). 19 Plaintiff timely filed a first amended complaint (“FAC”). (Doc. No. 14). On June 6, 2023, the 20 undersigned screened the FAC and found it stated cognizable First Amendment retaliation and 21 interference with mail claims against Defendants E. Cloak, S. Reed, and R. Vincent, but failed to 22 state any other cognizable claims. (Doc. No. 26 at 1). 23 Plaintiff was given three options to exercise within twenty-one (21) days from receipt of 24 the June 6, 2023 Order: (1) file a Second Amended Complaint (“SAC”); (2) file a notice that he 25 intends to stand on the SAC as screened and proceed only on those claims the Court deems 26 cognizable in the June 6, 2023 Screening Order; or (3) file a Notice stating he intends to stand on 27 his SAC subject to the undersigned recommending the district court dismiss certain claims and 28 1 | Defendants for the reasons stated in the June 6, 2023 Order. (Ud. at 17-18). The Court expressly 2 | warned Plaintiff that if he “fails to timely respond to this Court Order or seek an extension of time 3 | to comply” the undersigned “will recommend that the district court dismiss this case as a sanction 4 | for Plaintiff's failure to comply with a court order and prosecute this action.” (/d. at 19). The 5 || twenty-one (21) day deadline has lapsed and Plaintiff has not elected any of the three options or 6 | otherwise moved for an extension of time. (See generally docket). 7 Federal Rule of Civil Procedure 41(b) permits courts to involuntarily dismiss an action 8 | when a litigant fails to prosecute an action or fails to comply with a court order. See Fed. R. Civ. 9 | P.41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 (9th Cir. 2019) (citations 10 | omitted); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) 11 | (‘[T]he consensus among our sister circuits, with which we agree, is that courts may dismiss 12 | under Rule 41(b) sua sponte, at least under certain circumstances.”). Local Rule 110 similarly 13 | permits courts to impose sanctions on a party who fails to comply with a court order. 14 Accordingly, it is hereby ORDERED: 15 No later than August 7, 2023, Plaintiff shall comply with the Court’s previous June 6, 16 | 2023 Order, or show cause why the Court should not recommend that this case be dismissed 17 || without prejudice for Plaintiff's failure to prosecute this action and/or his failure to timely comply 18 | with the Court’s June 6, 2023 Order. 19 | Dated: __July 19, 2023 Mihaw. Mh. Bareh Zaskth 21 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28