(PC) Davis v. California Department of Corrections and Rehabilitation ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 AARON GENE DAVIS, Case No. 1:21-cv-01769-JLT-HBK (PC) 12 Plaintiff, ORDER TO SHOW CAUSE 13 v. APRIL 15, 2024 DEADLINE 14 CDCR, et al., 15 Defendants. 16 17 Plaintiff Aaron Gene Davis, a former state prisoner, initiated this action by filing a pro se 18 civil rights complaint under 42 U.S.C. § 1983. (Doc. No. 7). On August 16, 2023, pursuant to 28 19 U.S.C. § 1915A the Court issued a screening order finding the Complaint failed to state a federal 20 claim against any Defendant. (See generally Doc. No. 19). The Court afforded Plaintiff the 21 opportunity to file an amended complaint, and Plaintiff timely filed a first amended complaint. 22 (Doc. No. 20). On November 30, 2023, after Plaintiff filed a change of address indicating that he 23 had been released from CDCR custody, the Court issued an Order directing Plaintiff to pay the 24 balance of his filing fee or submit a long-form IFP application. (See Doc. No. 22). On February 25 9, 2024, the Court screened Plaintiff’s FAC and found that it stated an Eighth Amendment 26 excessive use of force claim against Defendants Sepeda, Ochoa, and Guiterrez, but failed to state 27 any other cognizable claims. (Doc. No. 23 at 9). Plaintiff was given two options to exercise no 28 later than March 15, 2024: (1) file a notice that he intends to stand on the FAC as screened and 1 | proceed only on those claims the Court deems cognizable in the February 9, 2024 Screening 2 | Order; or (2) file a Notice stating he intends to stand on his FAC subject to the undersigned 3 || recommending the district court dismiss certain claims and Defendants for the reasons stated in 4 | the February 9, 2024 Screening Order. (Ud. at 9-10). The Court expressly warned Plaintiff that if 5 || he “fails to timely respond to this Court Order or seek an extension of time to comply” the 6 | undersigned “will recommend that the district court dismiss this case as a sanction for □□□□□□□□□□□ 7 | failure to comply with a court order and prosecute this action.” (/d. at 10 § 3). The deadline to 8 || respond has lapsed and Plaintiff has not elected either of the two options or otherwise moved for 9 | anextension of time. (See docket). Additionally, Plaintiff has failed to either pay the balance of 10 | his filing fee or file a long-form IFP application, as required by the Court’s November 30, 2023 11 | Order. (See Doc. No. 22). 12 Federal Rule of Civil Procedure 41(b) permits courts to involuntarily dismiss an action 13 || when a litigant fails to prosecute an action or fails to comply with a court order. See Fed. R. Civ. 14 | P.41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 (9th Cir. 2019) (citations 15 | omitted); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) 16 | (“[T]he consensus among our sister circuits, with which we agree, is that courts may dismiss 17 | under Rule 41(b) sua sponte, at least under certain circumstances.”). Local Rule 110 similarly 18 | permits courts to impose sanctions on a party who fails to comply with a court order. 19 Accordingly, it is hereby ORDERED: 20 No later than April 15, 2024, Plaintiff shall comply with the Court’s previous Orders 21 | dated November 30, 2023 and February 9, 2024, or show cause why the Court should not 22 || recommend that this case be dismissed without prejudice for Plaintiffs failure to prosecute this 23 || action and/or his failure to timely comply with the Court’s November 30, 2023 and February 9, 24 | 2024 Orders. °° | Dated: _ March 25, 2024 Mila Wh fareh Sass 26 HELENA M. BARCH-KUCHTA 4 UNITED STATES MAGISTRATE JUDGE 28