CIVIL MINUTES – GENERAL

Case No. 5:20-cv-1688-FLA (MAR) Date: July 27, 2021 Title Present: The Honorable: MARGO A. ROCCONI, UNITED STATES MAGISTRATE JUDGE

ERICA BUSTOS N/A

Deputy Clerk Court Reporter / Recorder

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

N/A N/A

Proceedings: (In Chambers) ORDER TO SHOW CAUSE RE: DISMISSAL FOR LACK

OF PROSECUTION

On July 22, 2020, David Calderon (“Plaintiff”), proceeding a pro se and in forma pauperis (“IFP”), constructively filed1 a Civil Rights Complaint (“Complaint”) pursuant to 42 U.S.C. § 1983 (“section 1983”). ECF Docket No. (“Dkt.”) 1 at 31.2 On August 31, 2020, the Court dismissed the Complaint with leave to amend, granting Plaintiff twenty-one (21) days to file a First Amended Complaint (“FAC”). Dkt. 6 at 16. On December 8, 2020, Plaintiff constructively filed a First Amended Complaint. Dkt. 15. On April 27, 2021, the Court dismissed the FAC with leave to amend, granting Plaintiff twenty-one (21) days to file a Second Amended Complaint (“SAC”). Dkt. 19 at 14.

On May 19, 2021, Plaintiff filed a Motion for Extension of Time to File Second Amended Complaint (“Motion”). Dkt. 20. On May 27, 2021, the Court granted Plaintiff’s Motion.3 Dkt. 21. Plaintiff’s SAC was due on June 28, 2021. Id. On July 5, 2021, Plaintiff constructively filed a Status Request asking for “an updated [sic] on [Plaintiff’s] second amendment [sic] lawsuit.” Dkt. 24. To date, however, Plaintiff has not filed a Second Amended Complaint.

Accordingly, Plaintiff is ordered to show cause in writing within twenty-one (21) days of this Order, by August 17, 2021, why this action should not be dismissed under Rule 41(b) for failure to prosecute. See Fed. R. Civ. P. 41(b).

1 Under the “mailbox rule”, when a pro se prisoner gives prison authorities a pleading to mail to the court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010). 2 All citations to electronically filed documents refer to the CM/ECF pagination. 3 After Plaintiff filed his Motion, he was transferred to North Kern State Prison. See Dkt. 22. Plaintiff’s Notice of Change of Address (“Notice”) was constructively filed on May 22, 2021. Id. The Court received the Notice on May 26, 2021 and it was docketed on May 28, 2021. Id. The Court granted Plaintiff’s Motion on May 27, 2021. Dkt. 21. Accordingly, to ensure Plaintiff has received all relevant documents, the Clerk of Court is directed to send Plaintiff, at his current place of incarceration at North Kern State Prison, a copy of: this Order to Show Cause; the Court’s April 27, 2021 ODLA, Dkt. 19; and the Court’s Minute Order granting Plaintiff’s Motion, Dkt. 21.

CIVIL MINUTES – GENERAL

Case No. 5:20-cv-1688-FLA (MAR) Date: July 27, 2021 Title The Court will consider any of the following three (3) options to be an appropriate response to this OSC:

(1) Plaintiff shall file a Second Amended Complaint that addresses the deficiencies identified in the Court’s April 27, 2021 ODLA; (2) Plaintiff shall provide the Court with an explanation as to why he has failed to file a Second Amended Complaint; or (3) Plaintiff may request a voluntarily dismissal of the action pursuant to Federal Rule of Civil Procedure 41(a). The Clerk is directed to attach a Notice of Dismissal form for Plaintiff’s convenience.

Failure to respond to the Court’s Order may result in the dismissal of the action.

IT IS SO ORDERED.

: Initials of Preparer eb

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CASE NUMBER

Plaintiff(s), v.

NOTICE OF DISMISSAL PURSUANT

TO FEDERAL RULES OF CIVIL

PROCEDURE 41(a) or (c) Defendant(s). PLEASE TAKE NOTICE: (Check one) G This action is dismissed by the Plaintiff(s) in its entirety. G The Counterclaim brought by Claimant(s) is dismissed by Claimant(s) in its entirety. G The Cross-Claim brought by Claimants(s) is dismissed by the Claimant(s) in its entirety. G The Third-party Claim brought by Claimant(s) is dismissed by the Claimant(s) in its entirety. G ONLY Defendant(s) is/are dismissed from (check one)G Complaint, G Counterclaim, G Cross-claim, G Third-Party Claim brought by . The dismissal is made pursuant to F.R.Civ.P. 41(a) or (c). Date Signature of Attorney/Party NOTE: F.R.Civ.P. 41(a): This notice may be filed at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs. F.R.Civ.P. 41(c): Counterclaims, cross-claims & third-party claims may be dismissed before service of a responsive