Thomas v. Mercy Hospital of Bakersfield

Filing 27

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)

Download PDF
1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 MICHAEL THOMAS, SR., Case No. 1:11-cv-01140-DLB PC 10 Plaintiff, 11 v. ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED FOR FAILURE TO PROSECUTE 12 13 MERCY HOSPITAL OF BAKERSFIELD, et al., (ECF No. 26) TWENTY-ONE DAY DEADLINE 14 Defendants. 15 16 Plaintiff Michael Thomas, Sr., (“Plaintiff”) is a prisoner in the custody of the California 17 Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in 18 forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. Plaintiff filed his complaint on July 19 1, 2011 in the Northern District of California. (ECF No. 4.) The case was transferred to this Court 20 on July 11, 2011. (ECF No. 8.) On June 1, 2012, the Court ordered Plaintiff to provide a more 21 definite statement of facts regarding his claim. (ECF No. 21.) On June 18, 2012, Plaintiff filed a 22 response. (ECF No. 22.) 23 On July 16, 2012, the Court screened Plaintiff’s complaint and dismissed it for failure to state 24 a claim, with leave to amend. (ECF No. 23.) On August 20, 2012, Plaintiff filed his First Amended 25 Complaint. (ECF No. 24.) On February 27, 2013, the Court issued an order requiring Plaintiff to 26 file an amended complaint. (ECF No. 25.) Although the Court found a cognizable Eighth 27 Amendment excessive force claim, the Court explained that Plaintiff had to file an amended 28 complaint naming at least one Defendant because he could not effectuate service otherwise. The 1 1 amended complaint could proceed on the cognizable Eighth Amendment claim, and all other claims 2 and defendants were dismissed, with prejudice. On March 28, 2013, Plaintiff filed a second amended 3 complaint, which is presently before the Court for screening. (ECF No. 26.) Plaintiff again fails to 4 name any specific Defendants in the First Amended Complaint related to the excessive force claim. 5 Without any named Defendants, neither Plaintiff nor the United States Marshal is able to effectuate 6 service. 7 It appears that this action is at an impasse. At least one named Defendant is required for 8 service and to move this action forward, but Plaintiff fails to provide any specific defendants for the 9 cognizable Eighth Amendment claim. It is Plaintiff’s responsibility to obtain the names of at least 10 one Defendant and prosecute this action. 11 Plaintiff is therefore ORDERED TO SHOW CAUSE, if any he has, why this action should 12 not be dismissed for failure to prosecute. Plaintiff must file a response to this order to show cause 13 within twenty-one (21) days. Failure to do so will result in the dismissal of this action. 14 15 16 17 18 IT IS SO ORDERED. Dated: /s/ Dennis September 29, 2013 L. Beck UNITED STATES MAGISTRATE JUDGE DEAC_Signature-END: 3b142a 19 20 21 22 23 24 25 26 27 28 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?