United States District Court, C.D. California
ORDER DISMISSING ACTION FOR FAILURE TO
PROSECUTE
JOHN
A. KRONSTADT, UNITED STATES DISTRICT JUDGE.
I.
INTRODUCTION
On June
26, 2019, Plaintiff Terry Leeshawn Lewis
(“Plaintiff”), proceeding as a self-represented
party, constructively filed[1] a Complaint asserting claims
under 42 U.S.C. § 1983. The Complaint was filed in the
District of Oregon together with an Application for Leave to
Proceed in forma pauperis
(“Application”) and a Motion for Appointment of
Counsel (“Motion”). Electronic Case Filing
Numbers (“ECF Nos.”) 1-3. On September 11, 2019,
the case was transferred from the District of Oregon to this
District. ECF No. 5, Transfer Order. In Plaintiff's
Application, he failed to provide a certified copy of his
inmate trust fund statement for the prior six months.
See ECF No. 1, Application. Plaintiff's
Application was conditionally granted, in an Order that
directed Plaintiff to file a copy of his trust account by
October 16, 2019. ECF No. 12, Order Conditionally Granting
IFP Application.
On
October 18, 2019, an Order issued that dismissed the
Complaint with leave to amend (“ODLA”). ECF No.
14, ODLA. The ODLA instructed that if Plaintiff elected to
pursue this action he was to file an amended complaint
[(“First Amended Complaint” or
“FAC”)] within 21 days of the service date of the
ODLA. That Order included the following language:
Plaintiff is cautioned that if Plaintiff does not
comply with the instructions enumerated above, the Court may
recommend that this action be dismissed with or without
prejudice for failure to state a claim, prosecute and/or obey
Court orders under Federal Rule of Civil Procedure
41(b).
Id. at 24-26 (emphasis in original).
Since
the ODLA was issued, Plaintiff has filed an additional copy
of his trust account and a request to submit a
“supplemental complaint.” See ECF Nos.
15, 16.
On
October 30, 2019, an Order to Show Cause (“OSC”)
was issued, which was set for November 18, 2019, as to why
Plaintiff's request should not be denied and why this
action should not be dismissed for failing to comply with
orders of the Court. ECF No. 17, OSC. The OSC stated that
Plaintiff could satisfy its terms by either filing the FAC in
the manner described in Section IV of the ODLA, or by
providing an explanation as to why he could not amend his
Complaint in the manner described in Section IV of the ODLA
[ECF No. 14, OLDA at 24-26]. Id. The OSC once again
cautioned Plaintiff that a failure to comply with its terms
would result in a recommendation that the action be
dismissed, without prejudice, for failure to prosecute and to
comply with orders of the Court. Id. Plaintiff did
not respond.
On
December 5, 2019, a Final Order to Show Cause (“Final
OSC”) was issued. ECF No. 18, Final OSC. It directed
that Plaintiff:
either (a) advise the Court that he does not desire to pursue
this action; (b) if Plaintiff does desire to pursue this
action, show good cause in writing, if any exists, why
Plaintiff has not timely filed with the Court his FAC, and
why the Court should not recommend that this action be
dismissed for failure to prosecute and failure to comply with
the Court's prior Order; (c) state that he wishes to
proceed in the matter based on the allegations in the
original complaint; or (d) file a FAC.
Id. at 1 (emphasis added).
The
Final OSC stated that Plaintiff had until December 19, 2019,
to comply with its terms by choosing one of the options that
was provided. Id. The Final OSC cautioned that if
Plaintiff failed to comply with its terms, pursuant to
Fed.R.Civ.P. 41(b), the Magistrate Judge would recommend that
the matter be dismissed, without prejudice, for failure to
prosecute or comply with orders of the Court. Id. at
1-2.
As of
December 26, 2019, Plaintiff did not file an amended
complaint, as ordered, or request an extension of time to do
so. Given Plaintiff's failure to prosecute this matter
diligently and to follow Court orders, this action is
DISMISSED, without prejudice, pursuant to
Fed.R.Civ.P. 41(b) and Local Rule (“L.R.”) 41-1.
II.
...