Thomas v. Mercy Hospital of Bakersfield
ORDER to SHOW CAUSE Why Action Should Not Be Dismissed for Failure to Prosecute, signed by Magistrate Judge Dennis L. Beck on 9/29/2013. (21- Day Deadline)(Martin-Gill, S)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
MICHAEL THOMAS, SR.,
Case No. 1:11-cv-01140-DLB PC
ORDER TO SHOW CAUSE WHY ACTION
SHOULD NOT BE DISMISSED FOR
FAILURE TO PROSECUTE
MERCY HOSPITAL OF BAKERSFIELD, et
(ECF No. 26)
TWENTY-ONE DAY DEADLINE
Plaintiff Michael Thomas, Sr., (“Plaintiff”) is a prisoner in the custody of the California
Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in
forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. Plaintiff filed his complaint on July
1, 2011 in the Northern District of California. (ECF No. 4.) The case was transferred to this Court
on July 11, 2011. (ECF No. 8.) On June 1, 2012, the Court ordered Plaintiff to provide a more
definite statement of facts regarding his claim. (ECF No. 21.) On June 18, 2012, Plaintiff filed a
response. (ECF No. 22.)
On July 16, 2012, the Court screened Plaintiff’s complaint and dismissed it for failure to state
a claim, with leave to amend. (ECF No. 23.) On August 20, 2012, Plaintiff filed his First Amended
Complaint. (ECF No. 24.) On February 27, 2013, the Court issued an order requiring Plaintiff to
file an amended complaint. (ECF No. 25.) Although the Court found a cognizable Eighth
Amendment excessive force claim, the Court explained that Plaintiff had to file an amended
complaint naming at least one Defendant because he could not effectuate service otherwise. The
amended complaint could proceed on the cognizable Eighth Amendment claim, and all other claims
and defendants were dismissed, with prejudice. On March 28, 2013, Plaintiff filed a second amended
complaint, which is presently before the Court for screening. (ECF No. 26.) Plaintiff again fails to
name any specific Defendants in the First Amended Complaint related to the excessive force claim.
Without any named Defendants, neither Plaintiff nor the United States Marshal is able to effectuate
It appears that this action is at an impasse. At least one named Defendant is required for
service and to move this action forward, but Plaintiff fails to provide any specific defendants for the
cognizable Eighth Amendment claim. It is Plaintiff’s responsibility to obtain the names of at least
one Defendant and prosecute this action.
Plaintiff is therefore ORDERED TO SHOW CAUSE, if any he has, why this action should
not be dismissed for failure to prosecute. Plaintiff must file a response to this order to show cause
within twenty-one (21) days. Failure to do so will result in the dismissal of this action.
IT IS SO ORDERED.
September 29, 2013
UNITED STATES MAGISTRATE JUDGE
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