(PC) Pina v. Ysusi ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PABLO P. PIÑA, Case No. 1:20-cv-01735-BAM (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY CLAIMS AGAINST DEFENDANT YSUSI SHOULD 13 v. NOT BE DISMISSED FOR FAILURE TO PROSECUTE 14 YSUSI, et al., (ECF No. 58) 15 Defendants. TWENTY-ONE (21) DAY DEADLINE 16 17 18 Plaintiff Pablo P. Piña (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights 19 action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s first amended complaint 20 against Defendant Ysusi for excessive force in violation of the Eighth Amendment and against 21 Defendant J. Gonzales for retaliation in violation of the First Amendment. All parties have 22 consented to Magistrate Judge jurisdiction. (ECF Nos. 36, 39.) 23 On November 29, 2022, Defendant Ysusi filed a motion for summary judgment on the 24 grounds that Defendant Ysusi did not use excessive force against Plaintiff in violation of the 25 Eighth Amendment and Defendant Ysusi is entitled to qualified immunity as to Plaintiff’s Eighth 26 Amendment claim against him. (ECF No. 58.) In the motion, Plaintiff was provided with notice 27 of the requirements for opposing a motion for summary judgment. Woods v. Carey, 684 F.3d 934 28 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1988); Klingele v. Eikenberry, 849 1 F.2d 409, 411–12 (9th Cir. 1988). (ECF No. 58-9.) Pursuant to Local Rule 230(l) and Federal 2 Rule of Civil Procedure 6(d), Plaintiff’s opposition or statement of non-opposition was due on or 3 before December 23, 2022. The deadline for Plaintiff to respond to Defendant Ysusi’s motion for 4 summary judgment has expired, and he has not otherwise been in contact with the Court. 5 Plaintiff will be permitted one final opportunity to show cause why his claims against Defendant 6 Ysusi should not be dismissed with prejudice.1 7 Accordingly, it is HEREBY ORDERED that Plaintiff shall show cause by WRITTEN 8 RESPONSE within twenty-one (21) days of service of this order why his claims against 9 Defendant Ysusi should not be dismissed, with prejudice, for failure to prosecute. Plaintiff may 10 comply with the Court’s order by filing an opposition or statement of non-opposition to 11 Defendant Ysusi’s motion for summary judgment, (ECF No. 58). Plaintiff is warned that if he 12 fails to comply with the Court’s order, his claims against Defendant Ysusi will be dismissed, 13 with prejudice, for failure to prosecute. 14 IT IS SO ORDERED. 15 16 Dated: January 10, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 1 The Court notes that Defendant Gonzales filed a separate motion for partial summary judgment on the ground that Plaintiff failed to exhaust available administrative remedies for his claims 26 against Defendant Gonzales. (ECF No. 41.) As Plaintiff timely opposed that motion and it 27 remains pending before the Court, at this time, Plaintiff’s claims against Defendant Gonzales will not be dismissed based on Plaintiff’s failure to oppose the motion for summary judgment filed by 28 Defendant Ysusi.