Rhodes v. Fresno County, et al.

Filing 35

ORDER VACATING 33 Order of Dismissal Dated February 14, 2017, and GRANTING Plaintiff Thirty Days to Comply with the Court's December 8, 2016, Screening Order signed by Magistrate Judge Stanley A. Boone on 2/15/2017. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PERCY LEE RHODES,

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Plaintiff,

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v.

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FRESNO COUNTY, et al.,

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Defendants.

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Case No.: 1:15-cv-01714-SAB (PC)
ORDER VACATING ORDER OF DISMISSAL
DATED FEBRUARY 14, 2017, AND GRANTING
PLAINTIFF THIRTY DAYS TO COMPLY WITH
THE COURT’S DECEMBER 8, 2016, SCREENING
ORDER
[ECF Nos. 29, 32, 33, 34]

Plaintiff Percy Lee Rhodes is appearing pro se and in forma pauperis in this civil rights action

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

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the United States Magistrate Judge on November 23, 2015. Local Rule 302.

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On December 8, 2016, the Court screening Plaintiff’s second amended complaint and ordered

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Plaintiff to either file a third amended complaint or notify the Court of his willingness to proceed only

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on the claims found to be cognizable, within thirty days. 28 U.S.C. § 1915A; 28 U.S.C. § 1915(e).

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Plaintiff was warned that if he failed to comply, this action would be dismissed, without prejudice, for

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failure to obey a court order. Plaintiff failed to respond to the Court’s order.

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Therefore, on January 18, 2017, the Court ordered Plaintiff to show cause within twenty days

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as to why the action should not be dismissed. After more than twenty days passed and Plaintiff failed

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to comply with or otherwise responded to the order, the Court dismissed the action for failure to

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prosecute on February 14, 2017, and judgment was entered. (ECF Nos. 33 & 34.)
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However, the February 14, 2017 dismissal order crossed in the mail with Plaintiff’s response to

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the order to show cause bearing a February 3, 2017 signature date, which was filed on February 14,

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2017. (ECF No. 32.)

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In his response to the order to show cause, Plaintiff contends that he never received the Court’s

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December 8, 2016, order screening his second amended complaint because he was incarcerated in Los

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Angeles. Plaintiff indicates that he intends to file a response to the Court’s screening order; however,

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he requests a copy of his second amended complaint and a copy of the Court’s December 8, 2016,

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screening order. The Court will excuse Plaintiff’s late this filing in this instance, however, Plaintiff is

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advised that it is his duty to promptly inform the Court in writing of any change of address and to

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timely respond to any and all orders. Local Rule 110 & 182(f). As Plaintiff has previously been

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advised, the failure to respond to the Court’s orders and failure to show good cause in the future will

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result in dismissal of the action.
The Court will make a one-time exception and provide Plaintiff a courtesy copy of the relevant

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documents. However, Plaintiff is advised that any future requests will be subject to payment. The

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Clerk charges $.50 per page for copies of documents. See 28 U.S.C. § 1914(a). Copies of up to

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twenty pages may be made by the Clerk’s Office at this Court upon written request and prepayment of

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the copy fees. The fact that the Court has granted leave for Plaintiff to proceed in forma pauperis does

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not entitle him to free copies of documents from the Court. Under 28 U.S.C. § 2250, the Clerk is not

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required to furnish copies without cost to an indigent plaintiff except by order of the judge. As

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previously stated, the Court will make a one-time exception and provide Plaintiff a copy of the

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documents previously submitted.

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

The Court’s February 14, 2017 order dismissing this action is HEREBY VACATED;

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2.

The Clerk of Court shall send Plaintiff a courtesy copy of the second amended

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complaint, filed August 17, 2016 (ECF No. 25), and the Court’s December 8, 2016,

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screening order (ECF No. 29);

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3.

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Within thirty (30) days from the date of service of this order, Plaintiff shall either file a

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third amended complaint or notify the Court of his intent to proceed on the claims

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found to be cognizable; and
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Failure to comply with this order will result in dismissal of the action.

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IT IS SO ORDERED.

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Dated:

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February 15, 2017
UNITED STATES MAGISTRATE JUDGE

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