David Johnson v. Gutierrez et al

Filing 12

ORDER TO SHOW CAUSE RE DISMISSAL by Magistrate Judge Jacqueline Chooljian. Giving plaintiff the benefit of the doubt, the Court, on May 20, 2015, ordered the First OSC discharged, ordered the Clerk to re-serve plaintiff with the April Order and atta chments, and extended plaintiff's deadline to file a First Amended Complaint to June 2, 2015 ("May Order"). To date, although the foregoing deadline has expired, plaintiff has again failed to file a First Amended Complaint or to see k an extension of time to do so. IT IS THEREFORE ORDERED that plaintiff shall show cause in writing, on or before June 30, 2015, why this action should not be dismissed based upon the deficiencies identified in the April Order and/or based upon pl aintiff's failure to prosecute. If plaintiff no longer wishes to pursue this action, he may expedite matters by instead signing and returning the attached Notice of Dismissal by the foregoing deadline. See order for further details. (Attachments: # 1 Dismissal Form) (hr)

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

EDCV 15-71 DMG(JC)

Title

David Johnson v. Warden Gutierrez, et al.

Present: The Honorable

Date

June 16, 2015

Jacqueline Chooljian, United States Magistrate Judge

Hana Rashad

None

None

Deputy Clerk

Court Reporter / Recorder

Tape No.

Attorneys Present for Plaintiff:

Attorneys Present for Defendants:

none

none

Proceedings:

(IN CHAMBERS)
ORDER TO SHOW CAUSE RE DISMISSAL

On, November 17, 2014, in the United States District Court for the Southern District of
California, plaintiff David Johnson (“plaintiff”), who is in federal custody, is proceeding pro se, and has
been granted leave to proceed in forma pauperis, filed a Civil Rights Complaint (“Complaint”) which
the Court liberally construed as asserting claims under Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics (“Bivens”), 403 U.S. 388 (1971), and the Federal Tort Claims Act, 28 U.S.C.
§§ 2671-80 (“FTCA”). The Complaint sued the following defendants connected with the Federal
Correctional Complex in Victorville, California where plaintiff was formerly housed: (1) Warden
Gutierrez; (2) Dr. Jesus Fernandez; and (3) Mid-Level Practitioner Victoria Malingkas (collectively
“defendants”). (Complaint at 1-2). Plaintiff sued all defendants in their individual and official
capacities, and sought monetary relief. (Complaint at 2, 7). The case was subsequently transferred to
the Central District of California and assigned/referred to this Court for adjudication.
On April 9, 2015, the Court dismissed the Complaint with leave to amend and afforded plaintiff
an opportunity, if he wished to pursue this matter, to file a First Amended Complaint within fourteen
(14) days, i.e., by April 23, 2015 (“April Order”). The April Order expressly cautioned plaintiff that the
failure timely to file a First Amended Complaint may result in the dismissal of this action with or
without prejudice on the grounds set forth in the April Order and/or for failure diligently to prosecute.
The April Order was sent to plaintiff at his address of record and was not returned as undeliverable.
As plaintiff did not timely respond to the April Order, the Court, on May 7, 2015, issued an
Order to Show Cause Re Dismissal (“First OSC”) directing plaintiff to show cause in writing why this
action should not be dismissed based upon the deficiencies identified in the April Order and/or based
upon plaintiff’s failure to prosecute. On May 20, 2015, plaintiff filed a response to the First OSC which
did not address the deficiencies identified in the April Order, but recited that plaintiff wished to continue
with this action and that he be notified of any deficiencies so that he could promptly correct them.
Giving plaintiff the benefit of the doubt, the Court, on May 20, 2015, ordered the First OSC discharged,
ordered the Clerk to re-serve plaintiff with the April Order and attachments, and extended plaintiff’s
CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 1 of 2

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

EDCV 15-71 DMG(JC)

Date

Title

June 16, 2015

David Johnson v. Warden Gutierrez, et al.

deadline to file a First Amended Complaint to June 2, 2015 (“May Order”). The May Order again
expressly cautioned plaintiff that the failure timely to file a First Amended Complaint may result in the
dismissal of this action with or without prejudice on the grounds set forth in the April Order and/or for
failure diligently to prosecute. To date, although the foregoing deadline has expired, plaintiff has again
failed to file a First Amended Complaint or to seek an extension of time to do so.
IT IS THEREFORE ORDERED that plaintiff shall show cause in writing, on or before June 30,
2015, why this action should not be dismissed based upon the deficiencies identified in the April Order
and/or based upon plaintiff’s failure to prosecute. If plaintiff no longer wishes to pursue this action,
he may expedite matters by instead signing and returning the attached Notice of Dismissal by the
foregoing deadline.
Plaintiff is cautioned that the failure to comply with this order and/or to show good cause,
will result in the dismissal of this action based upon the deficiencies identified in the April Order,
plaintiff’s failure to prosecute this action and/or plaintiff’s failure to comply with the Court’s
order.
IT IS SO ORDERED.
Attachment

Initials of Deputy Clerk: hr

CV-90 (06/04)

CIVIL MINUTES - GENERAL

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