-JLT Telles v. Stanislaus County Sheriff's Department et al, No. 1:2010cv01911 - Document 17 (E.D. Cal. 2011)

Court Description: ORDER Discharging 14 Order to Show Cause, ORDER Withdrawing 15 Findings and Recommendations, ORDER Granting 16 Motion for Extension, and ORDER Directing Clerk to Reserve signed by Magistrate Judge Jennifer L. Thurston on 4/5/2011. (Leon-Guerrero, A)
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-JLT Telles v. Stanislaus County Sheriff's Department et al Doc. 17 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 HENRY WILLIAM TELLES, JR., ) ) ) Plaintiff, ) ) v. ) ) ) STANISLAUS COUNTY SHERIFF’S ) DEPARTMENT, et al., ) ) ) ) ) Defendants. ) _______________________________________ ) Case No.: 1:10-cv-01911 AWI JLT ORDER DISCHARGING THE ORDER TO SHOW CAUSE (Doc. 14) ORDER WITHDRAWING THE FINDINGS AND RECOMMENDATIONS DISMISSING THE ACTION WITH PREJUDICE (Doc. 15) ORDER GRANTING PLAINTIFF’S MOTION FOR EXTENSION OF TIME 19 (Doc. 16) 20 ORDER DIRECTING THE CLERK TO RESERVE DOCUMENT 13 TO PLAINTIFF 21 22 Henry William Telles, Jr. (“Plaintiff”), proceeding pro se and in forma pauperis, commenced 23 this action on October 13, 2010, by filing a civil rights action pursuant to 42 U.S.C. § 1983. (Doc. 1). 24 Plaintiff asserts this action against Stanislaus County, the Sheriff’s Department of Stanislaus County, 25 the Sheriff of Stanislaus County, and Does 1-250. (Doc. 6). 26 I. Procedural History 27 28 The Court screened Plaintiff’s Complaint on November 24, 2010, and determined Plaintiff failed to state a cause of action. (Doc. 5). Plaintiff filed his Amended Complaint on 1 Dockets.Justia.com 1 December 20, 2010. (Doc. 6). The Court screened Plaintiff’s Amended Complaint and 2 found that Plaintiff failed again to state a claim upon which relief could be granted. (Doc. 7). 3 Following the Court’s order to show cause, Plaintiff filed his Second Amended Complaint on 4 January 31, 2011 (Doc. 11), and his Third Amended Complaint was filed on February 8, 2011 (Doc. 5 12). 6 On February 17, 2011, the Court dismissed the Second Amended Complaint because it was 7 superceded by the Third Amended Complaint, and the Third Amended Complaint was dismissed for 8 a failure to state a claim. (Doc. 13). Plaintiff was ordered to file a fourth amended complaint, 9 addressing the deficiencies identified by the Court within 21 days of service, or by March 10, 10 2011. Id. at 16. Plaintiff failed to file his amended pleadings, addressing the deficiencies identified 11 by the Court or to otherwise responded to the Court’s order. 12 On March 21, 2011, because Plaintiff failed to comply with the order dismissing his Third 13 Amended Complaint, the Court issued an order to show cause why the action should not be 14 dismissed for Plaintiff’s failure to prosecute the action and based upon his failure to comply with the 15 Court’s order. (Doc. 14). In the alternative, the Court directed Plaintiff to file his fourth amended 16 complaint. Id. at 2. Plaintiff failed to comply with the Court’s order, and the Court issued its 17 Findings and Recommendations to dismiss the action on March 30, 30, 2011. (Doc. 15). 18 On March 31, 2011, Plaintiff filed a response to the Court’s order to show cause and asserted 19 that he did not receive the Court’s order dismissing the Third Amended Complaint. (Doc. 13). 20 Further, Plaintiff moved for an extension of time to file a Fourth Amended Complaint. (Id.) 21 II. Response to the Order to Show Cause and the Motion for Extension of Time 22 In the response filed on March 31, 2011, Plaintiff asserts he did not receive the Court’s order 23 dismissing his Third Amended Complaint. (Doc. 16 at 2). Plaintiff explains that he received the 24 order to show cause (Doc. 14), which directed him to either respond to the Court or file a Fourth 25 Amended Complaint, but was unable to do so because he could not address the deficiencies in his 26 Third Amended Complaint without the order dismissing it. (Doc. 16 at 2). Therefore, Plaintiff seeks 27 leave of the Court to file a Fourth Amended Complaint, after he receives a copy of the order. Id. 28 2 1 Plaintiff argues he should receive 21 days to file an amended complaint as was originally 2 granted by the Court rather than the 14 days allotted under the order to show cause. However, 3 Plaintiff does not explain his delay in responding to the order to show cause. Plaintiff states he 4 received the order on March 17, 2011, but Plaintiff failed to notify the Court that he had not received 5 the document referenced therein until March 31, 2011. Notably, the order to show cause directed 6 Plaintiff to show cause as to why the action should not be dismissed “or in the alternative” to file his 7 amended complaint. (Doc. 14 at 2) (emphasis added). However, Plaintiff failed to respond to or 8 otherwise comply with the Order until after the filing deadline. 9 III. Conclusion and Order 10 Based upon the foregoing, the Court HEREBY ORDERS: 11 1. The Order to Show Cause dated March 14, 2011 (Doc. 14) is DISCHARGED; 12 2. The Findings and Recommendations dated March 30, 2011 (Doc. 15) is 13 14 WITHDRAWN; 3. 15 The Clerk of Court IS DIRECTED to re-serve Plaintiff with the Order dated February 17, 2011 (Doc. 13); 16 4 Plaintiff’s motion for an extension of time (Doc. 16) is GRANTED; 17 5. Within 14 days of the date of service of this order, Plaintiff must file an amended 18 complaint curing the deficiencies identified by the Court in the Order Dismissing the 19 Third Amended Complaint (Doc. 13); and 20 21 6. Plaintiff is firmly caution that his failure to comply with this order will result in a recommendation that the matter be dismissed for failure to obey a court order. 22 23 IT IS SO ORDERED. 24 Dated: April 5, 2011 9j7khi /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 25 26 27 28 3