Walker v. Krol et al

Filing 33

ORDER OF SERVICE WHY ACTION SHOULD NOT BE DISMISSED WITH PREJUDICE. Signed by Judge Haywood S. Gilliam, Jr. on 6/13/2017. (Attachments: # 1 Certificate/Proof of Service)(ndrS, COURT STAFF) (Filed on 6/13/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JEFFREY E. WALKER, Plaintiff, 8 9 10 United States District Court Northern District of California 11 v. Case No. 15-cv-05819-HSG ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED WITH PREJUDICE KROL, et al., Defendants. 12 13 Plaintiff filed this pro se civil rights action under 42 U.S.C. § 1983, alleging that prison 14 officials at San Francisco County Jail violated his constitutional rights. Now pending before the 15 Court is Defendants’ motion to dismiss or, in the alternative, motion to compel deposition. Dkt. 16 No. 30. The basis for Defendants’ motion to dismiss is Plaintiff’s repeated refusals to sit for his 17 deposition. Defendants detail the following efforts to depose Plaintiff: 18 19 20 21 22 23 24 — On November 18, 2015, Defendants attempted to depose Plaintiff, but Plaintiff ended the deposition after twelve minutes, stating that he was “mentally impaired” due to medication. Dkt. No. 30-1 (“Ceballo Decl.”), ¶ 11. — On December 7, 2015, defense counsel contacted Plaintiff on the telephone to reschedule his deposition, but Plaintiff refused to discuss setting a new date for his deposition, and abruptly ended the phone call. Ceballo Decl., ¶ 12. — On March 23, 2017, Defendants attempted to depose Plaintiff, but Plaintiff refused to answer any questions related to the present lawsuit, claiming that he had not received notice of the deposition. Ceballo Decl., ¶ 17. 25 Plaintiff has not disputed Defendants’ description of their efforts to schedule his deposition. 26 Because Plaintiff has refused to sit his deposition, Defendants have no evidence concerning the 27 allegations set forth in Plaintiff’s complaint. Plaintiff has not filed an opposition to the motion, and 28 the deadline to do so has since passed. Also, Plaintiff has not communicated with the Court since 1 October 31, 2016. It appears from the record that Plaintiff is refusing to prosecute this case.1 The 2 Court further notes that this action has been pending since December 18, 2015. Dkt. No. 1. The Court orders Plaintiff to show cause why the Court should not grant Defendants’ 3 4 motion to dismiss. Within twenty-eight (28) days of the date of this order, Plaintiff shall file 5 an opposition to Defendants’ motion to dismiss. IT IS SO ORDERED. 6 7 Dated: 6/13/2017 ______________________________________ HAYWOOD S. GILLIAM, JR. United States District Judge 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1 27 28 Rule 41(b) of the Federal Rules of Civil Procedure provides that a defendant may move to dismiss an action with prejudice if the plaintiff fails to prosecute or to comply with the Federal Rules of Civil Procedure or a court order. Fed. R. Civ. P. 41(b). 2

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