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)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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MICHAEL THOMAS, SR.,

Case No. 1:11-cv-01140-DLB PC

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Plaintiff,
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v.

ORDER TO SHOW CAUSE WHY ACTION
SHOULD NOT BE DISMISSED FOR
FAILURE TO PROSECUTE

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MERCY HOSPITAL OF BAKERSFIELD, et
al.,

(ECF No. 26)
TWENTY-ONE DAY DEADLINE

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Defendants.

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Plaintiff Michael Thomas, Sr., (“Plaintiff”) is a prisoner in the custody of the California

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Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in

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forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. Plaintiff filed his complaint on July

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1, 2011 in the Northern District of California. (ECF No. 4.) The case was transferred to this Court

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on July 11, 2011. (ECF No. 8.) On June 1, 2012, the Court ordered Plaintiff to provide a more

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definite statement of facts regarding his claim. (ECF No. 21.) On June 18, 2012, Plaintiff filed a

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response. (ECF No. 22.)

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On July 16, 2012, the Court screened Plaintiff’s complaint and dismissed it for failure to state

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a claim, with leave to amend. (ECF No. 23.) On August 20, 2012, Plaintiff filed his First Amended

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Complaint. (ECF No. 24.) On February 27, 2013, the Court issued an order requiring Plaintiff to

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file an amended complaint. (ECF No. 25.) Although the Court found a cognizable Eighth

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Amendment excessive force claim, the Court explained that Plaintiff had to file an amended

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complaint naming at least one Defendant because he could not effectuate service otherwise. The
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amended complaint could proceed on the cognizable Eighth Amendment claim, and all other claims

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and defendants were dismissed, with prejudice. On March 28, 2013, Plaintiff filed a second amended

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complaint, which is presently before the Court for screening. (ECF No. 26.) Plaintiff again fails to

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name any specific Defendants in the First Amended Complaint related to the excessive force claim.

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Without any named Defendants, neither Plaintiff nor the United States Marshal is able to effectuate

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service.

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It appears that this action is at an impasse. At least one named Defendant is required for

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service and to move this action forward, but Plaintiff fails to provide any specific defendants for the

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cognizable Eighth Amendment claim. It is Plaintiff’s responsibility to obtain the names of at least

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one Defendant and prosecute this action.

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Plaintiff is therefore ORDERED TO SHOW CAUSE, if any he has, why this action should

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not be dismissed for failure to prosecute. Plaintiff must file a response to this order to show cause

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within twenty-one (21) days. Failure to do so will result in the dismissal of this action.

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IT IS SO ORDERED.
Dated:

/s/ Dennis

September 29, 2013

L. Beck

UNITED STATES MAGISTRATE JUDGE
DEAC_Signature-END:

3b142a

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