(PC) Rodriguez v. Mendoza ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ERLINDO RODRIGUEZ, JR., Case No. 1:21-cv-00410-JLT-BAM (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED FOR 13 v. FAILURE TO PROSECUTE 14 MENDOZA, et al., (ECF No. 44) 15 Defendants. TWENTY-ONE (21) DAY DEADLINE 16 17 Plaintiff Erlindo Rodriguez, Jr. (“Plaintiff”) is a state prisoner proceeding pro se and in 18 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds 19 against Defendant Mendoza for failure to protect and excessive force in violation of the Eighth 20 Amendment and against Defendant Campbell1 for excessive force in violation of the Eighth 21 Amendment. 22 On April 17, 2023, Defendants filed a motion for summary judgment on the grounds that: 23 (1) there is no genuine dispute of fact on the merits of Plaintiff’s failure to protect claim against 24 Defendant Mendoza; (2) Defendant Mendoza is entitled to qualified immunity as to Plaintiff’s 25 failure to protect claim; (3) Plaintiff’s excessive force claim against Defendant Mendoza is barred 26 by the favorable termination rule in Heck v. Humphrey, 512 U.S. 477 (1994); (4) there is no 27 28 1 Erroneously sued as “Cambell.” 1 genuine dispute of material fact on the merits of Plaintiff’s excessive force claim against 2 Defendant Campbell; and (5) Defendant Campbell is entitled to qualified immunity as to 3 Plaintiff’s excessive force claim. (ECF No. 44.) In the motion, Plaintiff was provided with 4 notice of the requirements for opposing a motion for summary judgment. Woods v. Carey, 684 5 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1988); Klingele v. 6 Eikenberry, 849 F.2d 409, 411–12 (9th Cir. 1988). (ECF No. 44-5.) Pursuant to Local Rule 7 230(l) and Federal Rule of Civil Procedure 6(d), Plaintiff’s opposition or statement of non- 8 opposition was due on or before May 11, 2023. The deadline for Plaintiff to respond to 9 Defendants’ motion for summary judgment has expired, and he has not otherwise been in contact 10 with the Court. Plaintiff will be permitted one final opportunity to show cause why this action 11 should not be dismissed with prejudice. 12 Accordingly, it is HEREBY ORDERED that Plaintiff shall show cause by WRITTEN 13 RESPONSE within twenty-one (21) days of service of this order why this action should not be 14 dismissed, with prejudice, for failure to prosecute. Plaintiff may comply with the Court’s order 15 by filing an opposition or statement of non-opposition to Defendants’ April 17, 2023 motion for 16 summary judgment. Plaintiff is warned that if he fails to comply with the Court’s order, this 17 matter will be dismissed, with prejudice, for failure to prosecute. 18 IT IS SO ORDERED. 19 20 Dated: May 25, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28