Fuery v. Cherry et al

Filing 43

ORDER signed by Chief District Judge Kimberly J. Mueller on 1/14/20 ORDERING that this case is DISMISSED without prejudice for failure to prosecute. FED. R. Civ. P. 41(b). CASE CLOSED. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN J. FUERY,

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No. 2:18-CV-00982-KJM-CKD
Plaintiff,

v.

ORDER

MARK CHERRY, et al.,
Defendants.

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The court granted plaintiff’s request for an additional 30 days to file an amended

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complaint on September 23, 2019, at the same time holding plaintiff’s failure to file either an

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amended complaint or a noticed motion to stay within 30 days will result in the court dismissing

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the case without prejudice for failure to prosecute. ECF No. 41. Plaintiff made the request after

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the court issued an order to show cause why this case should not be dismissed for failure to

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prosecute, to which plaintiff responded with his ex parte request for the additional 30 days “to

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complete drafting of the final pleading in this case.” See ECF Nos. 38, 39. Prior to that, the court

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had granted plaintiff, who is proceeding pro se, multiple extensions of time to file an amended

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complaint after granting defendants’ motion to dismiss. See ECF Nos. 24, 27, 29, 31. The court

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also ordered plaintiff to show cause why this case should not be dismissed for failure to prosecute

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on March 4, 2019, which the plaintiff responded to with a “motion for reconsideration.” See
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ECF Nos. 32, 33, 34, 35. On April 26, 2019, the court granted plaintiff’s motion for

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reconsideration requesting 30 days to file a motion to stay the case, given plaintiff’s disability and

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cognitive issues. ECF No. 36. As of this date, plaintiff has not responded to the order to show

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cause dated September 23, 2019 setting a 30-day deadline for plaintiff to file his amended

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complaint. ECF No. 41. Defendant Hubert Chen has filed a notice of non-receipt of plaintiff’s

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amended complaint. ECF No. 42. In sum, plaintiff has, on numerous occasions, failed to respond

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to the court’s orders intended to move this case towards resolution.

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IT IS THEREFORE ORDERED that this case is DISMISSED without prejudice
for failure to prosecute. FED. R. Civ. P. 41(b).
DATED: January 14, 2020.

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