ORDER AFTER ORDER TO SHOW CAUSE HEARING RECOMMENDING TERMINATING SANCTIONS AGAINST PLAINTIFF HOANG MINH TRAN
REPORT AND RECOMMENDATION REGARDING DEFENDANTS' MOTION FOR SANCTIONS AND
PLAINTIFF'S MOTION TO DISMISS (DOC. NOS. 31, 41)
WILLIAM V. GALLO, Magistrate Judge.
On January 10, 2013, the Court held an Order To Show Cause ("OSC") Hearing regarding why sanctions should not be imposed against Plaintiff Hoang Minh Tran ("Plaintiff") for failure to respond to Defendants E. Schroeder ("Schroeder"), Omar Ortega ("Ortega"), Michael Dalbratt ("Dalbratt"), and Nicholas Ramirez's ("Ramirez") (collectively "Defendants") discovery requests. Plaintiff appeared on his own behalf. Kevin Kennedy appeared on behalf of Defendants.
The Court, having reviewed the history of this case, the documents filed by the parties and GOOD CAUSE APPEARING, HEREBY RECOMMENDS THAT TERMINATING SANCTIONS BE IMPOSED AGAINST Plaintiff.
On November 29, 2010, Plaintiff, a former state prisoner proceeding pro se, filed this action against Defendants alleging violations of his civil rights under 28 U.S.C. § 1983. (Doc. No. 1.) On the same date, Plaintiff filed a Motion to Proceed In Forma Pauperis and a Motion to Appoint Counsel. (Doc. Nos. 2, 3.)
On May 2, 2011, the District Court granted Plaintiff's Motion to Proceed In Forma Pauperis and denied his Motion to Appoint Counsel. (Doc. No. 4.) The Court gave Plaintiff thirty days to either (1) notify the Court if he would proceed with the claims the Court determined survived the sua sponte screening process or (2) file an Amended Complaint addressing the deficiencies the Court noted. Id.
On May 16, 2011, Plaintiff filed a Motion for Extension of Time to Amend his Complaint. (Doc. No. 5.) On May 19, 2011, the District Court granted the Motion and ordered Plaintiff to file his Amended Complaint no later than July 11, 2011. (Doc. No. 6.)
On June 29, 2011, Plaintiff filed his First Amended Complaint ("FAC"). (Doc. No. 7.)
On September 19, 2011, the District Court issued an Order (1) dismissing Defendant William D. Gore and (2) directing the U.S. Marshal to effect service of the Amended Complaint upon the remaining Defendants. (Doc. No. 8.)
On October 26, 2011, summonses as to each remaining Defendant were returned executed to the Clerk of Court. (Doc. Nos. 10-13.) The executed summonses indicated that the Amended Complaint was served upon the Defendants on October 20, 2011 and their Answers were due by November 10, 2011. Id.
When Defendants filed no answer to the FAC, nor had Plaintiff moved for default, on May 8, 2012, the District Court issued an Order to Show Cause ("OSC") why the case should not be dismissed for failure to prosecute. (Doc. No. 17.) Plaintiff was ordered to respond in writing to the OSC by June 4, 2012. Id . An OSC Hearing was scheduled for June 8, 2012. Id.
On May 22, 2012, Plaintiff filed a written response to the OSC. (Doc. No. 18.) In his response, Plaintiff explained that counsel for Defendants disputed the validity of service. Id . Plaintiff argued that Defendants were seeking to delay the proceedings and requested the District Court move the case forward. Id.
On May 23, 2012, the District Court issued an OSC as to why default should not be entered. (Doc. No. 19.) The Court construed Plaintiff's response to the original OSC as a Motion for Entry of Default. Id . In addition, the Court vacated the OSC regarding Plaintiff's failure to prosecute and instead set an OSC Hearing for June 8, 2012 as to why default should not be entered. Id.
On May 31, 2012, Plaintiff filed a Motion for Default Judgment, Motion for Sanctions, and a Motion for Summary Judgment. (Doc. No. 21.) On the same date, Defendants filed an Answer to the Amended Complaint and a Response to the OSC. (Doc. Nos. 22, 23.)
On June 8, 2012, the District Court held an OSC Hearing.
On June 27, 2012, the District Court issued an Order Denying Plaintiff's Motions for Entry of Default, Default Judgment, Summary Judgment, and Sanctions. (Doc. No. 25.)
On June 29, 2012, this Court issued a Case Management Conference Order Regulating Discovery and Other Pretrial Proceedings. (Doc. No. 26.) All discovery pertaining to facts was to be completed on or before December 31, 2012. Id . In addition, a Mandatory Settlement Conference was scheduled for February 21, 2013. Id.
On August 27, 2012, Plaintiff filed his second Motion to Appoint Counsel. (Doc. No. 27.) This Court denied the Motion on August 31, 2012 because Plaintiff failed to demonstrate extraordinary circumstances. (Doc. No. 28.) Further, Plaintiff did not show how his alleged medical conditions prevented him from sufficiently prosecuting his lawsuit. Id . Even at this early stage, it was evident to the Court based upon the ...