Travyon C. Harbor v. Mark C. Kim

Filing 12

ORDER TO SHOW CAUSE RE: DISMISSAL by Magistrate Judge Karen L. Stevenson. Response to Order to Show Cause due by 1/11/2017. Plaintiff may discharge this Order by filing: (1) a request for an extension of time to file a First Amended Complaint along w ith a declaration signed under penalty of perjury that explains why he failed to comply with the Courts October 19, 2016 Order; or (2) a First Amended Complaint that complies with the Courts October 19, 2016 Order. Alternatively, Plaintiff may dismis s the entire matter without prejudice by filing a signed documented entitled Notice Of Voluntary Dismissal pursuant to Rule 41(a)(1)(A) of the Federal Rules of Civil Procedure. Plaintiffs failure to timely respond to this order will result in a recommendation of dismissal pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. (rh)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. ED CV 16-01906-GW-KS
Title

Date: December 21, 2016

Trayvon Harbor v. Judge Mark C. Kim

Present: The Honorable:

Karen L. Stevenson, United States Magistrate Judge

Roxanne Horan-Walker
Deputy Clerk

N/A
Court Reporter / Recorder

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Proceedings: (IN CHAMBERS) ORDER TO SHOW CAUSE
On October 11, 2016, Trayvon C. Harbor (“Plaintiff”), a California inmate currently
incarcerated at the California Medical Facility, Vacaville, CA (“CMF”) proceeding pro se and in
forma pauperis, filed a document entitled, “Affidavit of Information Felonies, High Crimes and
Misdemeanors,” naming as Defendant, Judge Mark C. Kim of the California Superior Court,
Long Beach, which the Clerk of the Court has construed as a civil rights complaint under 42
U.S.C. § 1983 (“Complaint”). (ECF No. 2.)
On October 19, 2016, the Court issued a Memorandum and Order Dismissing the
Complaint with Leave to Amend (“Order”) pursuant to 28 U.S.C. § 1915(A), after finding that
the Complaint was “patently frivolous,” and was “not cognizable under Section 1983.” (ECF
No. 8.) Noting that “amendment may be futile in this case,” in the interests of justice, the Order
nevertheless granted leave to amend and stated that if Plaintiff wished to pursue the action he
must file an Amended Complaint curing the identified defects within 30 days, i.e. by November
19, 2016. (Order at 5, 9.) More than four weeks have passed since Plaintiff’s November 19,
2016 deadline and Plaintiff has not filed an Amended Complaint that complies with the Court’s
October 19, 2016 Order.
Instead, on November 22, 2016, Plaintiff filed a document titled “‘Criminal Complaint’
Information (Amended Complaint) Felonies, High Crimes and Misdemeanors 18 U.S.C. § 4
(Misprision [sic] of a Felony) 18 U.S.C. § 73 (Obstruction of justice) 18 U.S.C. § 242, 242
(Conspiracy against constitutional rights and under the color of law) pursuant to Federal Rules of
Criminal Procedure, Rule 3 Demand for Grand Jury Indictment,” which this Court rejected on

CV-90 (03/15)

Civil Minutes – General

Page 1 of 2

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. ED CV 16-01906-GW-KS
Title

Date: December 21, 2016

Trayvon Harbor v. Judge Mark C. Kim

the basis that individuals cannot file criminal charges in the United States District Court. (ECF
No. 10.)
Subsequently, on December 13, 2016, Plaintiff filed a motion for relief from judgment
pursuant to Rule 60 (b) of the Federal Rules of Civil Procedure (“Rule 60 Motion”). The Rule
60 Motion argues that the District Court “misinterpreted [Plaintiff’s] criminal complaint as a
civil rights complaint [pursuant to] section 1983,” and alleging that “the District Court abused its
discretion and dismissed [Plaintiff’s] criminal complaint, based on the grounds that individuals
cannot file criminal charges in the United States District Court,” while conceding that “Criminal
proceeding[s] are initiated by the government.” (Rule 60 Motion at 1-2.) The Rule 60 Motion
was also rejected by the Court, on the basis that no judgment had been entered in the case. (ECF
No. 11.)
Pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, an action may be subject
to involuntary dismissal if a plaintiff “fails to prosecute or to comply with these rules or a court
order.” Accordingly, the Court could properly recommend dismissal of the action for Plaintiff’s
failure to prosecute and timely comply with the Court’s orders.
However, in the interests of justice, Plaintiff is again ORDERED TO SHOW
CAUSE on or before January 11, 2017, why the Court should not recommend that this
action be dismissed for failure to prosecute. Plaintiff may discharge this Order by filing:
(1) a request for an extension of time to file a First Amended Complaint along with a
declaration signed under penalty of perjury that explains why he failed to comply with the
Court’s October 19, 2016 Order; or (2) a First Amended Complaint that complies with the
Court’s October 19, 2016 Order. Alternatively, Plaintiff may dismiss the entire matter
without prejudice by filing a signed documented entitled “Notice Of Voluntary Dismissal”
pursuant to Rule 41(a)(1)(A) of the Federal Rules of Civil Procedure.
Plaintiff’s failure to timely respond to this order will result in a recommendation of
dismissal pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
:
Initials of Preparer

CV-90 (03/15)

Civil Minutes – General

rhw

Page 2 of 2