Williams v. Ortega et al

Filing 42

ORDER Requiring Plaintiff to Prosecute His Claims. All claims against Melgoza in the amended complaint are deemed stricken, and Melgoza need not respond to them or any more claims in this action. Williams should either dismiss his claims against thes e Defendants, or immediately begin prosecuting his claims against them. If he does not, these claims may be dismissed for failure to prosecute. Signed by Chief Judge Larry Alan Burns on 2/21/2020. (All non-registered users served via U.S. Mail Service) (jdt) (Main Document 42 replaced on 2/24/2020) (jdt).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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LANCE WILLIAMS,
CDCR #AG-2394,

ORDER REQUIRING PLAINTIFF
TO PROSECUTE HIS CLAIMS

Plaintiff,

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vs.

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Case No.: 3:18-cv-00547-LAB-MDD

O. ORTEGA, et al.,
Defendants.

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On December 11, Plaintiff Lance Williams filed his first amended complaint against

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Defendants Bowman, Bustos, Kimani, Lewis, Melgoza (erroneously sued as Malagoza),

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Ortega, and Valencia. All claims against Melgoza were dismissed, and Melgoza was

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dismissed as a party. But the amended complaint includes claims against Melgoza back,

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and again names Melgoza as a Defendant. All claims against Melgoza in the amended

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complaint are DEEMED STRICKEN, and Melgoza need not respond to them or any more

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claims in this action.

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Another problem is that although Defendants Bowman, Bustos, Lewis, Ortega, and

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Valencia appeared, they have not filed an answer or moved for dismissal of the claims

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against them. They joined in the motion to dismiss (Docket no. 26), but that motion only

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requested dismissal of claims against Kimura and Melgoza. Williams has not requested
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3:18-cv-00547-LAB-MDD

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entry of default against the other Defendants. See Fed. R. Civ. P. 55(a). Other than filing

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and serving his complaint, he has taken no other steps to prosecute his claims against them.

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For example, he did not request an entry of default against them, see Fed. R. Civ. P. 55(a),

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or move for default judgment. See Fed. R. Civ. P. 55(b)(2). Fed. R. Civ. P. 41(b) requires

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plaintiffs to prosecute their claims with reasonable diligence. Although the Court will not

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lightly dismiss a prisoner’s claims for failure to prosecute, Hernandez v. Whiting, 881 F.2d

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768, 771 (9th Cir. 1989), this requirement applies even to prisoners. Collins v. Pitchess,

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641 F.2d 740, 742 (9th Cir. 1981) (“Every plaintiff in federal court has a responsibility to

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prosecute his action diligently . . . . Incarceration does not absolve a plaintiff of this

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responsibility.”)

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Williams should either dismiss his claims against these Defendants, or

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immediately begin prosecuting his claims against them. If he does not, these claims

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may be dismissed for failure to prosecute.

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IT IS SO ORDERED.
Dated: February 21, 2020
Hon. Larry Alan Burns
Chief United States District Judge

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3:18-cv-00547-LAB-MDD