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Curtis v. Kushner

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


December 14, 2009

ROCKY CURTIS, PLAINTIFF,
v.
N. KUSHNER, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER REQUIRING PLAINTIFF TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED FOR FAILURE TO PROSECUTE THIRTY DAY DEADLINE

Rocky Curtis ("plaintiff") is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint commencing this action on January 13, 2006. (Doc. 1.) The parties have consented to jurisdiction by a United States Magistrate, and on October 30, 2009, this action was assigned to the undersigned for all further proceedings, including entry of judgment. (Docs. 21, 39, 40.) This action now proceeds with plaintiff's complaint against defendant Ernest Vaughn ("Defendant") only, on plaintiff's Eighth Amendment claim for inadequate medical care.*fn1

I. BACKGROUND

On June 9, 2009, the court issued an order directing the United States Marshal to serve process in this action upon Defendant. (Doc. 36.) On July 23, 2009, a Waiver of Service signed by Defendant on July 10, 2009 was filed with the court, giving Defendant sixty days in which to file an answer or motion under Rule 12 in response to plaintiff's complaint. (Doc. 38.) More than one-hundred-fifty days have passed, and Defendant has not filed an answer, a motion under Rule 12, or any other response to plaintiff's complaint.*fn2 Plaintiff has not filed any documents in this action since June 8, 2009, when he submitted documents to the court for service of process. (Doc. 35.)

II. ORDER TO SHOW CAUSE

Within thirty days from the date of service of this order, pursuant to Federal Rule of Civil Procedure 4(m), plaintiff shall show cause why this action should not be dismissed for plaintiff's failure to prosecute.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Within thirty days from the date of service of this order, plaintiff shall file a written response to the court, showing cause why this action should not be dismissed for plaintiff's failure to prosecute; and

2. Plaintiff's failure to comply with this order shall result in the dismissal of this action.

IT IS SO ORDERED.


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