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concluding that assigning a federal prisoner to an inhospitable bed and refusing to move him even after a doctor's order was issued presented a new context
Summary of this case from Lu v. KwonOpinion
2:20-cv-02740-SB (SK)
12-21-2022
Manisela V. Prescott v. United States of America et al.
Present: The Honorable: Steve Kim, United States Magistrate Judge
CIVIL MINUTES - GENERAL
Proceedings: (IN CHAMBERS) ORDER TO SHOW CAUSE
Plaintiff's original complaint failed to state a claim for relief under the Federal Tort Claims Act (FTCA) because the only potentially actionable tort was an intentional infliction of emotional distress (“IIED”) claim, and it neither named the United States nor alleged the required predicate physical injury. (ECF 68 at 13-15). He was granted leave to amend his FTCA claim for IIED by no later than June 2022. (Id. at 16; ECF 80 at 1). Plaintiff notified the Court in May 2022 that he intended to file an amended complaint by that deadline. (ECF 84 at 2). But as of this order, Plaintiff has filed no amended complaint-nor has he stated a decision not to file an amended complaint. “The failure of the plaintiff eventually to respond to the court's ultimatum-either by amending the complaint or by indicating to the court that it will not do so-is properly met with the sanction of a Rule 41(b) dismissal.” Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th Cir. 2004).
Plaintiff is thus ORDERED TO SHOW CAUSE by no later than Wednesday, January 4, 2023 why his FTCA claim should not be dismissed with prejudice. See Yourish v. California Amplifier, 191 F.3d 983, 990-92 (9th Cir. 1999). Plaintiff may discharge this order to show cause in any one of three ways: (1) file a notice of voluntary dismissal without prejudice using the attached Form CV-09; (2) file an amended complaint alleging an actionable FTCA claim against the United States as previously ordered; or (3) file a response to this order stating that he declines to file an amended complaint, thereby rendering the Court's April 2022 dismissal of his FTCA claim a final merits adjudication of that claim. Failure to take one of these actions on time will lead to involuntary dismissal of the FTCA claim with prejudice for lack of prosecution and noncompliance with court orders. See Fed.R.Civ.P. 41(b); L.R. 41-1.