Gabriel Chavez v. D Judd et al

Filing 21

ORDER TO SHOW CAUSE by Magistrate Judge Alicia G. Rosenberg. Response to Order to Show Cause due by 4/24/2009. IT IS THEREFORE ORDERED that, on or before April 24, 2009, Plaintiff shall show cause why this Court should not recommend dismissal of the action for failure to prosecute. Plaintiff may comply with this order by taking one of three actions: (1) filing an opposition to the motion to dismiss; (2) filing a notice that he wishes to pursue this action; or (3) filing a notice that he does no t wish to pursue this action. Plaintiff is cautioned that if he does not timely respond to this Order to Show Cause, the Magistrate Judge may recommend dismissal without prejudice for failure to prosecute and/or failure to follow a court order. (See Order for details.) (mp)

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D. JUDD, Defendant. GABRIEL CHAVEZ, Plaintiff, v. ) ) ) ) ) ) ) ) ) ) ) ) NO. EDCV 08-696-AHM (AGR) UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

ORDER TO SHOW CAUSE

For the reasons discussed below, the Court orders Plaintiff to show cause, on or before April 24, 2009, why this Court should not recommend dismissal of the complaint for failure to prosecute. I. BACKGROUND On August 11, 2008, Plaintiff, who at the time of filing was incarcerated at Ironwood State Prison, filed a second amended complaint pursuant to 42 U.S.C. § 1983. On December 5, 2008, Defendant filed a motion to dismiss ("MTD"). On December 9, 2008, the Court advised Plaintiff he had until January 8, 2009, to file an opposition. (Dkt. No. 17.) On January 27, 2009, after Plaintiff had not filed an opposition, the Court issued a minute order giving Plaintiff until February 27,

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2009, to file an opposition. (Dkt. No. 20.) The Court advised Plaintiff that failure to file a timely opposition might result in dismissal of the action. II. DISCUSSION A district court may on its own dismiss an action for failure to prosecute pursuant to Fed. R. Civ. P. 41(b). Henderson v. Duncan, 779 F.2d 1241, 1243 (9th Cir. 1986). The court is "required to weigh several factors in determining whether to dismiss this case for lack of prosecution: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits and (5) the availability of less drastic sanctions." Id. "A dismissal for lack of prosecution must be supported by a showing of unreasonable delay. Unreasonable delay creates a presumption of injury to the defense." Id. (internal citation omitted). Since Defendant filed a motion to dismiss the Second Amended Complaint, Plaintiff has not responded to the Court's orders. Given Plaintiff's failure to respond, Plaintiff may no longer wish to pursue this action. III. ORDER IT IS THEREFORE ORDERED that, on or before April 24, 2009, Plaintiff shall show cause why this Court should not recommend dismissal of the action for failure to prosecute. Plaintiff may comply with this order by taking one of three actions: (1) filing an opposition to the motion to dismiss; (2) filing a notice that he wishes to pursue this action; or (3) filing a notice that he does not wish to pursue this action.

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Plaintiff is cautioned that if he does not timely respond to this Order to Show Cause, the Magistrate Judge may recommend dismissal without prejudice for failure to prosecute and/or failure to follow a court order.

DATED: March 24, 2009

ALICIA G. ROSENBERG United States Magistrate Judge

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