Emanuel Magee v. Orry Marciano et al

Filing 6

ORDER TO SHOW OF CAUSE RE: DISMISSAL FOR FAILURE TO PROSECUTE by Magistrate Judge Karen L. Stevenson. Response to Order to Show Cause due by 5/30/2017. Plaintiff may discharge this Order by filing: (1) a request for an extension of time to file a First Amended Complaint and a declaration signed under penalty of perjury, explaining why he failed to comply with the Courts March 21, 2017 order; or (2) a First Amended Complaint. (rh)

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

EDCV 17-470-VAP (KS)

Date: May 8, 2017

Emanuel Magee v. Orry Marciano et al

Present: The Honorable:

Karen L. Stevenson, United States Magistrate Judge

Roxanne Horan-Walker
Deputy Clerk

Court Reporter / Recorder

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Proceedings: (IN CHAMBERS) ORDER TO SHOW CAUSE RE: DISMISSAL

On March 14, 2017, Plaintiff, a California state prisoner proceeding pro se and in
forma pauperis, filed a civil rights complaint (“Complaint”) pursuant to 42 U.S.C. § 1983
(“Section 1983”) and the Americans with Disabilities Act alleging, inter alia, disability
discrimination and deliberate indifference to his serious medical needs in connection with
his pre-colonoscopy ingestion of GoLytely. (Dkt. No. 1.)
On March 21, 2017, the Court dismissed the Complaint with leave to amend
because: Plaintiff failed to plead sufficient factual allegations to support a plausible
inference that Defendants Siebel and Marciano were personally involved in the alleged
violations of Plaintiff’s rights; Plaintiff’s claim for money damages against Defendants in
their official capacity is barred by the Eleventh Amendment; and the Complaint does not
comply with Rule 8 of the Federal Rules of Civil Procedure. (Dkt. No. 5.) The Court
ordered Plaintiff to file a First Amended Complaint within 30 days, i.e., no later than
April 20, 2017, and warned Plaintiff that his failure to do so could result in a
recommendation of dismissal pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure.
More than two weeks have passed since Plaintiff’s First Amended Complaint was
due, and Plaintiff has neither filed the First Amended Complaint, notified the Court of a
change of address, nor otherwise communicated with the Court about his case.

CV-90 (03/15)

Civil Minutes – General

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

EDCV 17-470-VAP (KS)

Date: May 8, 2017

Emanuel Magee v. Orry Marciano et al

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 timely comply with the Court’s March 21, 2017 Order.
However, in the interests of justice, Plaintiff is ORDERED TO SHOW CAUSE
on or before May 29, 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 and a declaration
signed under penalty of perjury, explaining why he failed to comply with the Court’s
March 21, 2017 order; or (2) a First Amended Complaint. Alternatively, if Plaintiff does
not wish to pursue this action, he may dismiss the Complaint without prejudice by filing a
signed document entitled “Notice Of Voluntary Dismissal” pursuant to Rule 41(a)(1)(A).
Plaintiff is advised that the failure to respond to this order will lead the Court
to recommend dismissal pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure.
IT IS SO ORDERED.
:
Initials of Preparer

CV-90 (03/15)

Civil Minutes – General

rhw

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