Dukes v. Warfield

Filing 7

ORDER: That Plaintiff shall file notice of continued intent to prosecute no later than (30) thirty-days of the date of this Order. Signed by Judge Saundra Brown Armstrong, on 11/20/09. (lrc, COURT STAFF) (Filed on 11/24/2009) Modified on 11/25/2009 (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. LT. C. WARFIELD, Defendant. MELVIN DUKES, Plaintiff,

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

No. C 09-04923 SBA (PR) ORDER DIRECTING PLAINTIFF TO SHOW CONTINUED INTENT TO PROSECUTE THIS ACTION

/

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 October 8, 2009, Magistrate Judge John F. Moulds of the Eastern District transferred this action to this Court.1 On October 9, 2009, sent Plaintiff a copy of the October 8, 2009 Order. On October 21, 2009, this case was transferred to the Northern District. 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 not communicated with the Court since this case has been transferred to the Northern District. Furthermore, the October 8, 2009 Order was returned as undeliverable on October 30, 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

Magistrate Judge Moulds indicated that he was construing Plaintiff's action as a civil rights action, stating: "Plaintiff, a state prisoner proceeding pro se, has filed a civil action on the form for filing a petition for writ of habeas corpus in a California state court. Upon review of the petition, the court construes this action as a civil rights action pursuant to 42 U.S.C. § 1983." (Oct. 8, 2009 Order at 1.)
1

1 2 3 4 5 6 7 8 9 10 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

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 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: 11/20/09 SAUNDRA BROWN ARMSTRONG United States District Judge

P:\PRO-SE\SBA\CR.09\Dukes4923.41(b)-NOTICE.wpd

2

1 2 3 4 5 6 7 8 9 10 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

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

Case Number: CV09-04923 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 November 24, 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: November 24, 2009 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk

P:\PRO-SE\SBA\CR.09\Dukes4923.41(b)-NOTICE.wpd

3