Michael Darnell Thomas v. James Smith III et al

Filing 54

ORDER TO SHOW CAUSE; MOTION FOR RECONSIDERATION (ECF No. 53) by Magistrate Judge Oswald Parada. Response to Order to Show Cause due by 3/15/2013. Plaintiff is again ordered to show cause why this case should not be dismissed for failure to prosecute. Plaintiff is admonished that his failure to file the SAC or failure to otherwise respond to this OSC by March 15, 2013, shall result in the Court recommending that this action be dismissed without prejudice for failure to prosecute. (jh)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 09-03074-GHK (OP)

Title

Michael Darnell Thomas v. James Smith, III, et al.

Date

February 12, 2013

Oswald Parada, United States Magistrate Judge

Present: The
Honorable
As assigned
Deputy Clerk

N/A
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

None

None

Proceedings:

IN CHAMBERS: ORDER TO SHOW CAUSE; MOTION FOR
RECONSIDERATION (ECF No. 53)

I.
Proceedings
On or about February 16, 2007, Michael Darnell Thomas (“Plaintiff”), was arrested for a
cocaine-related crime. On November 1, 2007, the United States Attorney’s Office filed a
criminal indictment charging Plaintiff with two criminal counts: Count 1, conspiracy to
distribute cocaine and marijuana (21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(B) and
841(b)(1)(D)); and Count 3, knowingly and intentionally possessing with the intent to
distribute a mixture or substance containing a detectable amount of cocaine (21 U.S.C.
§§ 841(a)(1) and (b)(1)(B)). (CR 07-1213-MMM ECF No. 1.)
On September 3, 2008, Plaintiff entered into a plea agreement with the United States.
(Id. ECF No. 222.) On November 17, 2008, Plaintiff entered a guilty plea to Count 1 of
the Indictment pursuant to the plea agreement.1 (Id. ECF No. 234.) As part of the plea
agreement, Plaintiff gave up his right to pursue any Fourth or Fifth Amendment claims
and any other pretrial motions that were or could have been filed. (Id. at 5, 6.)

1

An amended plea agreement was filed on November 22, 2008, deleting the name
of co-defendant, Krystale Alwanda Harris. The substantive terms of the agreement
remained unchanged. (Id. ECF No. 237.)
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 09-03074-GHK (OP)

Title

Michael Darnell Thomas v. James Smith, III, et al.

Date

February 12, 2013

On or about March 23, 2009, the Court granted Plaintiff’s request for new counsel, and
appointed Dale Rubin to replace Errol Stambler. (Id. ECF No. 277.) The Court also
vacated the sentencing hearing and instructed Plaintiff to advise the Court how he
wished to proceed. (Id.)
Meanwhile, on May 1, 2009, Plaintiff filed a pro se Civil Rights Complaint pursuant to
42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S. Ct.
1999, 29 L. Ed. 2d 619 (1971) (“Complaint”), after having paid the requisite filing fee.
(ECF No. 1.) In the Complaint, Plaintiff named as Defendants Federal Bureau of
Investigation (“FBI”) Special Agent James Smith, III, Plaintiff’s former criminal
attorney Errol Stambler, and Sprint Telecommunications. Plaintiff sought damages.
(CV 09-3074 ECF No. 1.)
Although service of the Complaint was never authorized or ordered, on May 25, 2009,
Defendant Stambler filed a Motion to Dismiss the Complaint pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure. (Id. ECF No. 7.) On June 18, 2009, Plaintiff
filed an Opposition to the Motion to Dismiss. (Id. ECF No. 12.)
On August 17, 2010, the Court stayed the current action, including Defendant Stambler’s
Motion to Dismiss, pending resolution of Plaintiff’s criminal case. The parties were
ordered to inform the Court within seven days of the entry of a judgment of conviction or
the entry of an order dismissing the pending criminal charges against Plaintiff. (Id. ECF
No. 45.)
The Court’s independent review of its computerized case management system, CM/ECF,
revealed that on September 10, 2012, Plaintiff was sentenced on Count 1 of the
Indictment to the custody of the Bureau of Prisons for a term of ninety-two months. (CR
07-1213 ECF No. 550.)
On September 17, 2012, Plaintiff filed a Motion for Leave to File a First Amended
Complaint (“FAC”), along with a proposed FAC. (CV 09-3074 ECF No. 47.)
On October 24, 2012, the Court lifted the stay of the current proceedings in light of
Plaintiff’s sentencing in the criminal case, granted Plaintiff’s Motion for Leave to file the
FAC, ordered the filing of the FAC as the operative pleading, and denied Defendant
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 09-03074-GHK (OP)

Title

Michael Darnell Thomas v. James Smith, III, et al.

Date

February 12, 2013

Stambler’s Motion to Dismiss as moot. (ECF Nos. 48, 49.) On October 25, 2012, the
Court issued a Memorandum and Order Dismissing the FAC with Leave to Amend,
allowing Plaintiff thirty days to file a Second Amended Complaint (“SAC”). (ECF No.
50.)
On January 15, 2013, after Plaintiff failed to file a SAC, the Court issued an Order to
Show Cause (“OSC”) why this case should not be dismissed for failure to prosecute.
Plaintiff was admonished that his failure to file the SAC or failure to otherwise respond
to the OSC by February 15, 2013, shall result in the Court recommending that this action
be dismissed without prejudice for failure to prosecute. (ECF No. 51.)
On January 28, 2013, Plaintiff filed a change of address indicating that he had been
transferred from Los Angeles to the Federal Correctional Institution (“FCI”) at Herlong,
California. (ECF No. 52.)
II.
Discussion
On February 4, 2013, Plaintiff filed a Motion for Reconsideration of the dismissal of the
FAC with leave to amend. (ECF No. 53.) The Local Rules of this Court provide in
pertinent part that:
A motion for reconsideration of the decision on any motion may
be made only on the grounds of (a) a material difference in fact
or law from that presented to the Court before such decision that
in the exercise of reasonable diligence could not have been
known to the party moving for reconsideration at the time of such
decision, or (b) the emergence of new material facts or a change
of law occurring after the time of such decision, or (c) a manifest
showing of a failure to consider material facts presented to the
Court before such decision. No motion for reconsideration shall
in any manner repeat any oral or written argument made in
support of or in opposition to the original motion.
C.D. Cal. R. 7-18.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 09-03074-GHK (OP)

Title

Michael Darnell Thomas v. James Smith, III, et al.

Date

February 12, 2013

After a review of Plaintiff’s Motion for Reconsideration, the Court finds that he has
failed to make the requisite showing to warrant reconsideration. However, as indicated
in the order dismissing the FAC with leave to amend, Plaintiff may file a SAC,
attempting to cure the defects in the FAC.
Accordingly, Plaintiff is again ordered to show cause why this case should not be
dismissed for failure to prosecute. Plaintiff is admonished that his failure to file the SAC
or failure to otherwise respond to this OSC by March 15, 2013, shall result in the Court
recommending that this action be dismissed without prejudice for failure to prosecute.
IT IS SO ORDERED.
cc: All Parties of Record

I hereby certify that these Minutes were served by electronic means
via the ECF system and NEF to Petitioner M. Thomas, at his
address of record; and sent via NEF to Defendant Counsel's E.mail
address of record, in this action on this date.
Dated: February 12, 2013
J. Holmes /s/
DEPUTY CLERK

Initials of deputy clerk

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jh-relief

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