Fletcher v. Mendez

Filing 6

ORDER DISMISSING CASE. Signed by Judge Yvonne Gonzalez Rogers on 2/13/17. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 2/13/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GREGORY L. FLETCHER,

Case No. 16-cv-03110-YGR (PR)

Plaintiff,
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ORDER OF DISMISSAL

v.
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CORRECTIONAL OFFICER MENDEZ,
Defendant.

United States District Court
Northern District of California

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On January 11, 2017, the Court issued an Order of Dismissal with Leave to Amend.

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Specifically, the Court granted Plaintiff twenty-eight days from the date of the Order to file an

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amended complaint to allege facts sufficient to state a cognizable constitutional claim and to

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provide sufficient information regarding the exhaustion of administrative remedies. Plaintiff was

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warned that the failure to timely file an amended complaint would result in the dismissal of this

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action for failure to prosecute. The time for Plaintiff to file his amended complaint has passed,

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and no amended complaint has been filed. Taking into account the salient factors set forth in

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Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992), the Court finds that dismissal is

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warranted under Federal Rule of Civil Procedure 41(b). 1 See Yourish v. Cal. Amplifier, 191 F.3d

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983, 989, 992 (9th Cir. 1999) (affirming dismissal of action following plaintiff’s failure to amend

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complaint after receiving leave to do so, where the interest in expeditious resolution of litigation,

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the court’s management of its docket, and avoiding prejudice to defendants favored dismissal).

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If and when Plaintiff is prepared to pursue his claims, he may file a new civil rights
action. The limitations period to file a section 1983 action in California is two years, but it is
tolled for up to two years during a continuous period of incarceration. See Silva v. Crain, 169 F.
3d 608, 610 (9th Cir. 1999) (holding, pursuant to Cal. Civ. Proc. Code § 340(3), that the
limitations period for filing a section 1983 action in California is one year); S.B. 688 (amending
Cal. Civ. Proc. Code § 340(3) and adding section 335.1 to establish two-year residual limitations
period for personal injury actions); Cal. Civ. Proc. Code § 352.1(a) (providing for an additional
two years of tolling during a period of continual imprisonment).

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Accordingly,
IT IS HEREBY ORDERED that the complaint in the above-captioned action is
DISMISSED. The Clerk of the Court shall terminate all pending motions and close the file.
IT IS SO ORDERED.
Dated: February 13, 2017

______________________________________
YVONNE GONZALEZ ROGERS
United States District Court Judge

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United States District Court
Northern District of California

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