Leonardo Joseph Rangel v. Joseph Gile et al

Filing 56

(IN CHAMBERS) ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED FOR FAILURE TO COMPLY WITH COURT ORDERS by Magistrate Judge Shashi H. Kewalramani. Plaintiff shall have up to and including December 8, 2020, to respond to this Order. (see document for further details) (hr)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
5:17-cv-01267-VBF-SHK

Case No.

Date: November 17, 2020

Title: Leonardo Joseph Rangel v. Joseph Gile, et al.

Present: The Honorable Shashi H. Kewalramani, United States Magistrate Judge
D. CASTELLANOS

Not Reported

Deputy Clerk

Court Reporter

Attorney(s) Present for Plaintiff(s):

Attorney(s) Present for Defendant(s):

None Present

None Present

Proceedings:

(In Chambers) Order to Show Cause Why Action Should Not Be
Dismissed For Failure to Comply With Court Orders
I. BACKGROUND

On June 23, 2017, Plaintiff Leonardo Joseph Rangel (“Plaintiff”), proceeding pro se and
in forma pauperis, constructively filed 1 his Complaint (“Complaint” or “Compl.”) under 42
U.S.C. § 1983 (“§ 1983”) against Deputy Sheriff Joseph Giles 2, Deputy Lopez, and Deputy
Hogue (collectively “Defendants”), in both their individual and official capacities. Electronic
Case Filing Number (“ECF No.”) 1, Compl.
On October 23, 2017, the Court issued an Order To Show Cause As To Why Action
Should Not Be Dismissed (“OSC”) for failing to timely file a Notice of Service of Summons on
each named Defendant. ECF No. 8, OSC. On January 8, 2018, Plaintiff filed a Proof of Service
(“POS”) for each named Defendant; however, the POSs did not include a summons and did not

1

Under the “mailbox rule,” when a pro se prisoner gives prison authorities a pleading to mail to
court, the court deems the pleading constructively “filed” on the date it is signed. Douglas v.
Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (applying the mailbox rule to civil rights suits filed by
pro se prisoners).
2
Plaintiff refers to Defendant’s name as “Gile,” but Defendant’s responsive pleading indicates
that the proper spelling is “Giles.” See ECF No. 15, MTD at 1.
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make clear that service was made by private process servers instead of the United States Marshal
Service (“USMS”). ECF Nos. 12-14, POSs.
In response, Defendants filed their first Motion to Dismiss (“First MTD”), which
argued, among other things, that service was untimely, that Plaintiff failed to seek a summons
from the Court, and that Defendants were not properly served a summons pursuant to Federal
Rule of Civil Procedure 4. ECF No. 15, First MTD at 8-10. Plaintiff filed an Opposition to the
MTD (“Opposition” or “Opp’n”) and requested appointment of counsel. ECF No. 20, Opp’n
at 1. On August 21, 2018, the Court granted in part and denied in part Defendants’ First MTD,
granted Plaintiff leave to amend his Complaint, and denied Plaintiff’s request for appointment of
counsel. ECF No. 21, Order re MTD at 1-2.
Plaintiff failed to file a First Amended Complaint (“FAC”) by the deadline designated in
the Court’s August 21, 2018 Order, so the Court dismissed the action for failure to prosecute. 3
ECF No. 23, Order re MTD at 3-5; ECF No. 24, Judgment. Plaintiff then sought relief from the
Judgment, ECF No. 30, Mot. to Reconsider, and the Court granted relief and reopened the case
on March 7, 2019, ECF No. 31, Order Granting Relief From Judgment.
On April 23, 2019, Plaintiff constructively filed his FAC, ECF No. 37, FAC, and
Defendants filed a second MTD (“Second MTD”), ECF No. 38, Second MTD. On March 18,
2020, the undersigned Magistrate Judge issued a Report and Recommendation (“R&R”)
addressing Defendant’s Second MTD and Plaintiff’s FAC. ECF No. 50, R&R. On May 7, 2020,
the Court withdrew its R&R, ECF No. 52, Withdrawal of R&R, and on May 12, 2020, the Court
issued an Amended R&R that granted in part Defendants’ Second MTD, ECF No. 53, Am.
R&R; ECF No. 55, Order Accepting Am. R&R. Specifically, the Court dismissed without
prejudice Plaintiff’s claims against Defendants in their official capacity, dismissed without
prejudice Plaintiff’s conspiracy claims, and dismissed with prejudice Plaintiff’s claims brought
under 18 U.S.C. §§ 241, 242. ECF No. 53, Am. R&R at 1-2; ECF No. 55, Order Accepting Am.
R&R at 1-2. However, the Court permitted Plaintiff to proceed with his claims under the
California Government Claims Act and under the Fifth, Sixth, and Eight Amendments, as well as
his claims under the Fourth Amendment against Defendants in their individual capacities. ECF
No. 53, Am. R&R at 1-2; ECF No. 55, Order Accepting Am. R&R at 2. The Court granted
Plaintiff sixty days from August 28, 2020 to properly serve Defendants. As of the date of this
Order, Plaintiff has not filed any POSs.
II. DISCUSSION
Under Federal Rule of Civil Procedure 41(b) (“Rule 41(b)”), the Court may dismiss an
action with prejudice for failure to prosecute or failure to comply with any court order. See Fed.
R. Civ. P. 41(b).
3

The Court also received returned mail from Plaintiff’s address, so the Court also dismissed the
action for failure to keep the Court informed of Plaintiff’s current address and entered judgment.
See ECF No. 23, Order re MTD; ECF No. 24, Judgment.
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Here, Plaintiff has failed to file POSs for each Defendant, and has thus failed to comply
with the Court’s August 28, 2020 Order. Consequently, under Rule 41(b), the Court may
properly dismiss the instant action with prejudice for failure to comply with a court order. Before
dismissing this action, however, the Court will afford Plaintiff an opportunity to explain his
failure to file POSs on Defendants.
III. ORDER
Accordingly, Plaintiff is ORDERED TO SHOW CAUSE, in writing, why this action
should not be dismissed for failure to comply with the Court’s Order. Plaintiff shall have up to
and including December 8, 2020, to respond to this Order. Plaintiff is cautioned that failure
to timely file a response to this Order will be deemed by the Court consent to the dismissal
of this action with prejudice.
IT IS SO ORDERED.

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