Filed: Jul. 25, 2017
Latest Update: Jul. 25, 2017
Summary: ORDER TO SHOW CAUSE KENDALL J. NEWMAN , Magistrate Judge . Plaintiff is a state prisoner, proceeding pro se. On January 5, 2017, this action was stayed pending plaintiff's release from the Department of State Hospitals ("DSH") and the return of his legal materials. By order filed June 9, 2017, plaintiff was directed to file, within thirty days, a status report addressing whether he has been released from DSH custody, and whether his legal materials have been returned to him. The order was s
Summary: ORDER TO SHOW CAUSE KENDALL J. NEWMAN , Magistrate Judge . Plaintiff is a state prisoner, proceeding pro se. On January 5, 2017, this action was stayed pending plaintiff's release from the Department of State Hospitals ("DSH") and the return of his legal materials. By order filed June 9, 2017, plaintiff was directed to file, within thirty days, a status report addressing whether he has been released from DSH custody, and whether his legal materials have been returned to him. The order was se..
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ORDER TO SHOW CAUSE
KENDALL J. NEWMAN, Magistrate Judge.
Plaintiff is a state prisoner, proceeding pro se. On January 5, 2017, this action was stayed pending plaintiff's release from the Department of State Hospitals ("DSH") and the return of his legal materials. By order filed June 9, 2017, plaintiff was directed to file, within thirty days, a status report addressing whether he has been released from DSH custody, and whether his legal materials have been returned to him. The order was served on plaintiff at his address of record at Salinas Valley State Prison in Soledad, as well as California State Prison in Los Angeles County ("CSP-LAC"). No copy of the order was returned as undeliverable by the postal service. Thirty days have now passed, and plaintiff has not filed the status report or otherwise responded to the court's order.
This action was filed on May 3, 2012. Defendants have twice filed motions for summary judgment that have been postponed due to plaintiff's housing and mental health issues. On October 18, 2016, plaintiff was warned of his obligation to comply with the court's Local Rules and orders. (ECF No. 98.) Specifically, Rule 41(b) of the Federal Rules of Civil Procedure provides:
Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule—except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19—operates as an adjudication on the merits.
Id.
On January 5, 2017, this action was temporarily stayed pending plaintiff's release from DSH custody and the return of his legal materials. However, by at least June 9, 2017, plaintiff was housed at CSP-LAC. (ECF No. 104.) The California Department of Corrections and Rehabilitation ("CDCR") inmate locator reflects that plaintiff remains housed at CSP-LAC. The CDCR website does not reflect that DSH inmates are housed at CSP-LAC.
Therefore, within seven days from the date of this order, defendants shall notify the court whether plaintiff has been transferred from DSH custody, and the date plaintiff was transferred to CSP-LAC. Within fourteen days from the date of this order, plaintiff shall show cause why this action should not be dismissed based on his failure to respond to the June 9, 2017 order, as well as his failure to prosecute this action. Plaintiff's failure to show cause will be deemed as consent to have the: (a) action dismissed for lack of prosecution; and (b) action dismissed based on plaintiff's failure to comply with a court order. Such failure shall result in a recommendation that this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b).
Accordingly, IT IS HEREBY ORDERED that:
1. Within seven days from the date of this order, defendants shall notify the court whether plaintiff has been transferred from DSH custody, and when plaintiff was transferred to CSP-LAC; and
2. Within fourteen days from the date of this order, plaintiff shall show cause why this action should not be dismissed based on his failure to comply with the June 9, 2017 order, and his failure to diligently prosecute this action. Failure to show cause will be deemed as consent to have the: (a) action dismissed for lack of prosecution; and (b) action dismissed based on plaintiff's failure to comply with a court order. Said failure shall result in a recommendation that this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b).
