Dukes v. Warfield et al

Filing 11

ORDER RE INTENT TO PROSECUTE: That Plaintiff shall file with the Court a notice of current address and a notice of intent to prosecute no later than (30) thirty-days from the date of this Order. Signed by Judge Saundra Brown Armstrong, on 10/26/09. (lrc, COURT STAFF) (Filed on 10/28/2009) Modified on 10/29/2009 (jlm, COURT STAFF).

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. MELVIN DUKES, Plaintiff,

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

No. C 09-03643 SBA (PR) ORDER DIRECTING PLAINTIFF TO FILE A NOTICE OF INTENT TO PROSECUTE THIS ACTION

LIEUTENANT WARFIELD, et al., Defendants /

Plaintiff filed the instant pro se civil rights complaint under 42 U.S.C. § 1983 in the United States District Court for the Eastern District of California, and in an Order dated July 30, 2009, Magistrate Judge Dale A. Drozd of the Eastern District transferred this action to this Court. On August 12, 2009, the Clerk of the Court informed Plaintiff that this case had been transferred to the Northern District. On August 18, 2009, the Clerk sent Plaintiff another notice directing him to pay the filing fee or to file a completed in forma pauperis application. Pursuant to Federal Rule of Civil Procedure 41(b), a district court may sua sponte dismiss an action for failure to prosecute or to comply with a court order. See Link v. Wabash R.R., 370 U.S. 626, 633 (1962); McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 1991). But such a dismissal should only be ordered when the failure to comply is unreasonable. See id. A district court should afford the litigant prior notice of its intention to dismiss. See Malone v. United States Postal Serv., 833 F.2d 128, 133 (9th Cir. 1987). In the instant case, Plaintiff has failed to communicate with the Court since this case has been transferred to the Northern District. Furthermore, the August 12, 2009 notice was returned as undeliverable on August 20, 2009 with a notation: "Return to Sender -- Inmate Refused." Accordingly, it is in the interests of justice and judicial efficiency for the Court to establish whether Plaintiff intends to continue to prosecute this action. Plaintiff shall file a notice of his continued intent to prosecute no later than thirty (30) days of the date of this Order. Failure to do so will

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result in the dismissal of this action without prejudice for failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure. See Malone, 833 F.2d at 133 (the district court should afford the litigant prior notice before dismissing for failure to prosecute). IT IS SO ORDERED. DATED: 10/26/09 SAUNDRA BROWN ARMSTRONG United States District Judge

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA MELVIN DUKES, Plaintiff, v. WARFIELD et al, Defendant. /

Case Number: CV09-03643 SBA CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on October 28, 2009, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Melvin Dukes D-33572 Salinas Valley State Prison P.O. Box 1050 Soledad, CA 93960-1050 Dated: October 28, 2009 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk

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