Vail v. City of Sacramento

Filing 32

ORDER signed by Magistrate Judge Deborah Barnes on 5/31/2018 DISCHARGING 29 Order to Show Cause and DIRECTING Plaintiff to file an amended complaint within 21 days of the date of this order. (York, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TERRENCE VAIL,

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Plaintiff,

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No. 2:16-cv-2673 DB PS

v.

ORDER

CITY OF SACRAMENTO,

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Defendant.

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By order signed February 6, 2018, plaintiff’s complaint was dismissed and plaintiff was

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granted leave to file an amended complaint that cured the defects noted in that order.1 (ECF No.

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26.) Plaintiff was granted twenty-eight days from the date of that order to file an amended

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complaint and was specifically cautioned that the failure to respond to the court’s order in a

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timely manner could result in this action being dismissed. On March 30, 2018, plaintiff’s request

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for a twenty-eight day extension of time to file an amended complaint was granted. (ECF No.

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28.) Again plaintiff was cautioned that the failure to timely comply with that order could result in

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the dismissal of this action.

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The parties have consented to Magistrate Judge jurisdiction over this action pursuant to 28
U.S.C. § 636(c)(1). (ECF No. 12.)
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On May 11, 2018, after the twenty-eight day period had expired and plaintiff had not

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responded to the court’s order in any manner, the court issued plaintiff an order to show cause as

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to why this action should not be dismissed due to a lack of prosecution. (ECF No. 29.) On May

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24, 2018, plaintiff filed a response. (ECF No. 30.) Therein, plaintiff asserts, in part, that he was

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incarcerated for some period of time which delayed his ability to comply with the court’s orders.2

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(Id. at 1.)

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Every plaintiff in federal court has a responsibility to prosecute his
action diligently. Failure to do so may permit the district court to
dismiss. Incarceration does not absolve a plaintiff of this
responsibility.

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Collins v. Pitchess, 641 F.2d 740, 742 (9th Cir. 1981). Nonetheless, in light of plaintiff’s pro se

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status, the court will provide plaintiff a final opportunity to comply with the court’s orders.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The May 11, 2018 order to show cause (ECF No. 29) is discharged;

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2. Plaintiff shall file an amended complaint within twenty-one (21) days of the date of

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this order3; and

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3. Plaintiff is cautioned that the failure to timely comply with this order may result in the

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dismissal of this action.

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Dated: May 31, 2018

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DLB:6
DB/orders/orders.consent/vail2673.eot2.ord

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On May 25, 2018, defendant filed an objection asserting, in part, that plaintiff was incarcerated
from only February 16, 2018, to March 6, 2018. (ECF No. 31 at 2.)
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Alternatively, if plaintiff no longer wishes to pursue this action plaintiff may file a notice of
voluntary dismissal of this action pursuant to Rule 41 of the Federal Rules of Civil Procedure.
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