Diaz v. Sherman et al

Filing 26

ORDER Discharging 23 Order to Show Cause, signed by Magistrate Judge Michael J. Seng on 4/21/15. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MIGUEL DIAZ,

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CASE NO. 1:13-cv-1627-LJO-MJS (PC)
Plaintiff,

ORDER DISCHARGING
SHOW CAUSE

ORDER

TO

v.
(ECF No. 23)
STU SHERMAN, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
rights action brought pursuant to 42 U.S.C. § 1983. On January 30, 2014, Plaintiff’s
complaint was dismissed for failure to state a claim, but he was given leave to file a first
amended complaint. (ECF No. 10.)
Plaintiff sought and was granted two extensions of time to file an amended
complaint. (ECF Nos. 13, 14, 15, 16.) The extended deadline passed without Plaintiff
either filing an amended pleading or seeking an extension of time to do so. On July 10,
2014, the Court ordered Plaintiff to show cause within fourteen days why the action
should not be dismissed with prejudice for failure to obey a court order and failure to
prosecute. (ECF No. 17.) Plaintiff did not timely respond to the order. On July 30, the
Court issued findings and a recommendation to dismiss the action. (ECF No. 18.)
On August 6, 2014, Plaintiff filed his response to the Court’s order to show cause.

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(ECF No. 19.) Based on Plaintiff’s response, the findings and recommendation were

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vacated, the order to show cause was discharged, and Plaintiff was granted an

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extension of time to file an amended complaint. (ECF No. 20.) Thereafter, Plaintiff

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sought and was granted a further extension of time to file an amended complaint. (ECF

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No. 22.) The extended deadline again passed without Plaintiff either filing an amended

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pleading or seeking an extension of time to do so. Accordingly, on October 31, 2014,

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Plaintiff again was ordered to show cause why the action should not be dismissed. (ECF

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No. 23.)

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Thereafter, on November 6, 2014, Plaintiff filed his first amended complaint. (ECF

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No. 24.) He filed a response to the order to show cause on November 19, 2014, stating

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that his amended complaint was timely filed. (ECF No. 25.)

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Plaintiff’s amended complaint is dated October 30, 2014. (ECF No. 24.) It was not

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timely under the Court’s September 19, 2014 order granting Plaintiff an extension of

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time. (ECF No. 22.) The Court does not take lightly Plaintiff’s repeated failure to timely

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respond to Court orders nor the ten month delay in Plaintiff filing his amended complaint.

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These failures are sufficient to warrant dismissal of the action for failure to prosecute and

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failure to obey a court order. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.

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1992) (dismissal for failure to comply with an order requiring amendment of a complaint).

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Nevertheless, in light of Plaintiff’s pro se status, the Court will discharge the order to

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show cause and will screen Plaintiff’s first amended complaint in due course.

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Accordingly, the order to show cause (ECF No. 23), filed October 31, 2014, is
HEREBY DISCHARGED.

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IT IS SO ORDERED.
Dated:

April 21, 2015

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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