Lee v. McGucken

Filing 64

ORDER DIRECTING PLAINTIFF TO SHOW CAUSE. Show Cause Response due by 3/25/2022. Signed by Judge Haywood S. Gilliam, Jr. on 3/4/2022. (ndr, COURT STAFF) (Filed on 3/4/2022)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PERRIS J. LEE,
Plaintiff,

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v.

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ORDER DIRECTING PLAINTIFF TO
SHOW CAUSE

E. KNOX, et al.,
Defendants.

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United States District Court
Northern District of California

Case No. 18-cv-03689-HSG

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Plaintiff filed this pro se civil rights action under 42 U.S.C. § 1983, alleging that, on April

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12, 2015, Salinas Valley State Prison (“SVSP”) officers Knox, Curry III, Medina, Streeper, Gasca,

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and McGuckin physically attacked him, in violation of the Eighth Amendment’s prohibition

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against the use of excessive force. Dkt. Nos. 1, 7, 10.1 Now pending before this Court is the

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summary judgment motion filed by defendants Knox, Medina, Streeper, Gasca, and McGuckin

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(“Defendants”). Dkt. No. 62.
DISCUSSION

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I.

Summary Judgment Motion
The basis for Defendants’ summary judgment motion is Plaintiff’s repeated refusal to

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respond to Defendants’ requests for admissions (“RFA”). Defendants first served the RFAs on

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Plaintiff on March 19, 2021. Plaintiff did not respond to them or request an extension of time to

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respond. Dkt. No. 62-2 (“Quinn Decl.”), ¶ 2. On August 24, 2021, Defendants served a second

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sets of RFAs on Plaintiff. Plaintiff again did not respond or request an extension of time to

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respond. Quinn Decl., ¶ 3. On October 27, 2021, Plaintiff represented to counsel that he had not

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Defendant Curry III was never served and has been dismissed from this action. Dkt. No. 24.

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received the discovery requests, including the RFAs, served on March 19, 2021, or the discovery

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requests served on August 24, 2021. Defendants served Plaintiff with the RFAs for a third time on

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November 8, 2021. Plaintiff again did not respond or request an extension of time to respond.

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Quinn Decl., ¶ 4. On December 28, 2021, counsel for Defendants sent Plaintiff a letter stating that

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if responses to the written discovery were not received by January 4, 2022, Defendants would file

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a motion to compel responses to the discovery requests and to deem the RFAs admitted. Plaintiff

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did not respond to this letter, and has not requested an extension of time to respond to the

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discovery requests. Quinn Decl., ¶ 5. These requests asked Plaintiff to admit, among other things,

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that

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•
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•

United States District Court
Northern District of California

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none of the Defendants assaulted Plaintiff as alleged in the complaint;
none of the Defendants injured Plaintiff as alleged in the complaint;
none of the Defendants violated Plaintiff’s Eighth Amendment rights as alleged in
the complaint; and
the allegations in the complaint are frivolous.

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See generally Dkt. No. 62. Defendants argue that the Court should deem these requests admitted

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because Plaintiff has failed to respond to these RFAs.
Plaintiff has not responded to Defendants’ discovery requests. Plaintiff has not filed an

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opposition to Defendants’ summary judgment motion, and the deadline to do so has since passed.

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Plaintiff has not communicated with the Court since August 23, 2021. Dkt. No. 57.

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II.

Order to Show Cause
Plaintiff has not responded to Defendants’ discovery requests. Plaintiff has not filed an

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opposition to Defendants’ summary judgment motion, and the deadline to do so has since passed.

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Plaintiff has not communicated with the Court since August 23, 2021. Dkt. No. 57. It is unclear if

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Plaintiff wishes to proceed with this action. Within twenty-one (21) days of the date of this order,

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Plaintiff is ordered to show cause why the Court should not either (1) grant Defendants’ summary

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judgment motion, or (2) dismiss this action for failure to prosecute pursuant to Fed. R. Civ. P.

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41(b).

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CONCLUSION

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For the reasons set forth above, the Court ORDERS Plaintiff to show cause, within

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twenty-one (21) days of the date of this order why the Court should not either (1) grant

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Defendants’ summary judgment motion, or (2) dismiss this action for failure to prosecute pursuant

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to Fed. R. Civ. P. 41(b).

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IT IS SO ORDERED.
Dated: 3/4/2022
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge

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United States District Court
Northern District of California

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