Martinez v. Davey et al

Filing 35

ORDER to SHOW CAUSE why this Action should not be Dismissed for Failure to State a Claim, Failure to Obey a Court Order, and Failure to Prosecute signed by Magistrate Judge Barbara A. McAuliffe on 11/07/2016. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICARDO MARTINEZ,

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Plaintiff,
v.
D. DAVEY, et al.,
Defendants.

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Case No.: 1:16-cv-00084-LJO-BAM (PC)
ORDER TO SHOW CAUSE WHY THIS ACTION
SHOULD NOT BE DISMISSED FOR FAILURE
TO STATE A CLAIM, FAILURE TO OBEY A
COURT ORDER, AND FAILURE TO
PROSECUTE
(ECF No. 32)
FOURTEEN (14) DAY DEADLINE

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Plaintiff Ricardo Martinez (“Plaintiff”) is a state prisoner proceeding pro se and in forma
pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

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On August 9, 2016, the Court dismissed Plaintiff’s complaint with leave to amend within thirty

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(30) days. (ECF No. 25). Plaintiff was warned that if he failed to file an amended complaint in

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compliance with the Court’s order, this action would be dismissed, with prejudice, for failure to obey a

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court order and failure to state a claim. (Id. at p. 12). Plaintiff failed to comply with the Court’s order.

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Therefore, on September 20, 2016, the Court issued an order to show cause why this action should not

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be dismissed based on Plaintiff’s failure to comply with the Court’s August 9, 2016 order, for failure

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to state a claim and for failure to prosecute. (ECF No. 30).
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After the Court issued the order to show cause, the Court received a first amended complaint

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with a proof of service indicating it was delivered to prison officials for mailing on September 5, 2016.

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(ECF No. 30). As a result, the Court found it appropriate to discharge the order to show cause.

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However, because the first amended complaint lacked any signature, the Court struck it from the

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record and granted Plaintiff thirty (30) days from September 28, 2016, to file a signed complaint that

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complied with Federal Rules of Civil Procedure and the Local Rules. (ECF No. 32). Plaintiff was

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warned that if he failed to file an amended complaint in compliance with the Court’s order, the Court

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would dismiss this action, with prejudice, for failure to state a claim, failure to prosecute and failure to

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obey a court order. (ECF No. 32, p. 3). More than thirty (30) days have passed, and Plaintiff has not

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filed a signed amended complaint that complies with the Federal Rules of Civil Procedure and the

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Local Rules. Instead, on October 18, 2016, Plaintiff filed a notice indicating that he mailed his

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amended complaint to the Court on September 5, 2016, but the envelope was returned to him on

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September 21, 2016. On that same date, he sent the documents to the Court for a second time. (ECF

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No. 34).

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Plaintiff’s notice appears to reference the unsigned first amended complaint received by the

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Court on September 23, 2016, (ECF No. 30), which has been stricken from the record for lack of

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signature. It is unclear whether Plaintiff intends to further prosecute this action by filing an amended

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complaint that is signed and in compliance with the Federal Rules of Civil Procedure and the Locals

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Rules. Accordingly, IT IS HEREBY ORDERED that Plaintiff shall show cause, within fourteen (14)

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days of service of this order, why this action should not be dismissed based on Plaintiff’s failure to

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comply with the Court’s September 28, 2016 order, for failure to state a claim and for failure to

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prosecute.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

November 7, 2016

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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