James X. Conway v. Walter A. Dunbar

The United States District Court, for the Northern District of California, invoking a local rule, dismissed on its own motion this Civil Rights action on the ground that plaintiff had failed to diligently prosecute the same.

Plaintiff, as a state prisoner, was entitled to have the Clerk of the District Court cause summons and complaint to be served. Potter v. McCall, 433 F.2d 1087 (9th Cir. 1970). But plaintiff did not provide the clerk with copies of his complaint (as amended); after nearly two years passed and plaintiff still had not done so, the district court issued its order to show cause preliminary to dismissal of the action. In response to that order, plaintiff filed an answer which contained allegations to the effect that prison officials and guards had thwarted all his attempts to supply the requisite copies and to communicate with the court. However, the district court, in resolving the issue, was entitled to consider not only its own records, which showed that during the period under consideration plaintiff had commenced numerous actions in the United States District Court, but also to note that he had prosecuted four appeals. In this milieu, the order of dismissal…