Wilds v. Holland et al

Filing 26

ORDER to SHOW CAUSE Why Action Should Not Be Dismissed For Failure to Prosecute, signed by Magistrate Judge Stanley A. Boone on 9/23/2014. Show Cause Response Due Within Thirty Days. (Marrujo, C)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

NICHOLAS REID WILDS,

12
13
14
15
16
17

Plaintiff,
v.
K. HOLLAND, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

Case No.: 1:12-cv-01950-SAB (PC)
ORDER TO SHOW CAUSE WHY ACTION
SHOULD NOT BE DISMISSED FOR FAILURE
TO PROSECUTE

Plaintiff Nicholas Reid Wilds is appearing pro se and in forma pauperis in this civil rights

18

action pursuant to 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 636(c), Plaintiff consented to the

19

jurisdiction of the United States Magistrate Judge on December 12, 2012. Local Rule 302.

20

This action is proceeding against Defendants Scott, Eubanks, Montgomery, Abernathy, and

21

Dessenberger for use of excessive physical force in violation of the Eighth Amendment, against

22

Defendant Abernathy for deliberate indifference to a serious medical need, in violation of the Eighth

23

Amendment, and against Defendants Sergeant P. Dessenberger and officer M. Bojan for retaliation. In

24

addition, Plaintiff’s complaint sets forth cognizable state law tort claims against Defendant Scott for

25

assault and battery, against Defendant Montgomery for battery, and against Defendants Scott,

26

Eubanks, Montgomery, Abernathy, and Dessenberger for negligence.

27
28

On June 23, 2014, Defendants Abernathy, Bojan, Dessenerger, Eubanks, Montgomery, and
Scott filed an answer to the complaint. On June 25, 2014, the Court issued a discovery and scheduling
1

1

order. On July 10, 2014, the discovery and scheduling order was returned to the Court with a notation

2

that it was “undeliverable,” and Plaintiff’s forwarding address is unknown. On September 5, 2014, the

3

Court issued a notice of expedited trial setting procedures, which was returned to the Court as

4

undeliverable. Defendants filed a motion for summary judgment on September 10, 2014.
More than 63 days have passed since the document was returned as undeliverable on July 10,

5
6

2014, and Plaintiff has failed file address change and he has not otherwise been in contact with the

7

Court.
Plaintiff is required to keep the Court apprised of his current address at all times, and Local

8
9

Rule 183(b) provides, “If mail directed to a plaintiff in propria persona by the Clerk is returned by the

10

U.S. Postal Service, and if such plaintiff fails to notify the Court and opposing parties within sixty-

11

three (63) days thereafter of a current address, the Court may dismiss the action without prejudice for

12

failure to prosecute.” Federal Rule of Civil Procedure 41(b) also provides for dismissal of an action

13

for failure to prosecute. Courts may dismiss actions sua sponte under Rule 41(b) based on the

14

plaintiff’s failure to prosecute. Hells Canyon Preservation Council v. U. S. Forest Serv., 403 F.3d 683,

15

689 (9th Cir. 2005) (citation omitted).

16

Accordingly,

17

IT IS HEREBY ORDERED that Plaintiff is directed to show cause within thirty (30) days

18

why the action should not be dismissed for failure to prosecute.

19
20
21

IT IS SO ORDERED.

22

Dated:

23

September 23, 2014
UNITED STATES MAGISTRATE JUDGE

24
25
26
27
28
2