Dukes v. Hedrick, et al

Filing 7

ORDER RE: INTENT TO PROSECUTE. Signed by Judge ARMSTRONG on 8/25/10. (lrc, COURT STAFF) (Filed on 8/25/2010)

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Dukes v. Hedrick, et al Doc. 7 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. B. HEDRICK, et al., MELVIN DUKES, Plaintiff, IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA No. C 10-02771 SBA (PR) ORDER DIRECTING PLAINTIFF TO SHOW CONTINUED INTENT TO PROSECUTE THIS ACTION Defendants. / On June 7, 2010, 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. On June 8, 2010, the Clerk of the Court in the Eastern District sent Petitioner "Prisoner New Case Documents," which included an "Order re Consent or Request for Reassignment" signed by Magistrate Judge Edmund F. Brennan of the Eastern District. On June 18, 2010, the aforementioned documents sent to Petitioner by the Clerk of the Eastern District were returned as undeliverable with a notation: "Undeliverable -Inmate Refused." In an Order dated June 21, 2010, Magistrate Judge Brennan transferred this action to this Court.1 On June 24, 2010, the Clerk of the Court informed Plaintiff that this case had been 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 Magistrate Judge Brennan indicated that he was construing Plaintiff's action as a civil rights action, stating: "Although filed on a form for a petition for writ of habeas corpus, plaintiff alleges his civil rights have been violated as a result of his conditions of confinement at Salinas Valley State Prison." (June 21, 2010 Order at 1.) 1 Dockets.Justia.com 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 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, the documents sent to Petitioner by the Clerk of the Eastern District were returned as undeliverable. Furthermore, Plaintiff has failed to communicate with the Court since this case has been transferred to the Northern District. 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 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: 8/25/10 SAUNDRA BROWN ARMSTRONG United States District Judge G:\PRO-SE\SBA\CR.10\Dukes2771.41(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. B HEDRICK et al, Defendant. / Case Number: CV10-02771 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 August 25, 2010, 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. Box1050 Soledad, CA 93960-1050 Dated: August 25, 2010 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk G:\PRO-SE\SBA\CR.10\Dukes2771.41(b)-NOTICE.wpd 3

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