Hollingsworth v. Paramo

Filing 8

ORDER DISMISSING Civil Action For Failing To State A Claim And For Failing To Prosecute In Compliance With Court Order Requiring Amendment: The Court certifies that an IFP appeal would not be taken in good faith and directs the Clerk to enter a final judgment of dismissal and to close the file. Signed by Judge William Q. Hayes on 4/5/2017. (All non-registered users served via U.S. Mail Service.) (mdc)

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r<, J ., ... J 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 Plaintiff, 13 vs. 14 15 Case No. 3:16-cv-01426-WQH-BLM JASON HOLLINGSWORTH, CDCR #AX-5810, CALIFORNIA DEP'T OF CORRECTIONS, et al., 16 Defendants. 17 ORDER DISMISSING CIVIL ACTION FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii) AND § 1915A(b)(l) AND FOR FAILING TO PROSECUTE IN COMPLIANCE WITH COURT ORDER REQUIRING AMENDMENT 18 19 20 Jason Hollingsworth ("Plaintiff'), proceeding pro se, and while incarcerated at 21 Richard J. Donovan Correctional Facility in San Diego, California, initially filed this civil 22 rights action pursuant to 42 U.S.C. § 1983 on June 6, 2016, claiming that prison officials 23 were in violation of the "Davis Bacon Act of 1931" and violated his right to equal 24 protection under the laws. (See Compl. at 4-6.) 25 III 26 III 27 III 28 III 3:16-cv-01426-WQH-BLM 1 I. 2 Procedural Background On August 5, 2016, the Court granted Plaintiff leave to proceed in forma pauperis 3 ("IFP"), but dismissed his Complaint sua sponte for failing to state a claim upon which 4 relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and§ 1915A(b)(l). (ECF 5 No. 5). The Court granted Plaintiff 45 days in which to file an Amended Complaint that 6 cured these pleading deficiencies. (Id. at 8-9; see Lopez v. Smith, 203 F.3d 1122, 1130 7 (9th Cir. 2000) (en bane) (noting that leave to amend should be granted when complaint 8 is dismissed sua sponte under § 1915 "if it appears at all possible that the plaintiff can 9 correct the defect.").) 10 Plaintiff filed his First Amended Complaint ("FAC") on August 24, 2016. (ECF 11 No. 6). However, the Court once again found dismissal of the entire action appropriate 12 on the grounds that he had failed to state a claim upon which relief could be granted 13 pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and§ 1915A(b)(l). (ECF No. 7). Again, the 14 Court granted Plaintiff 45 days in which to file an Amended Complaint that cured these 15 pleading deficiencies. (Id. at 6.) 16 More than 45 days has since passed since the Court's February 2, 2017 Order. 17 Plaintiff has filed no Amended Complaint; nor has he requested an extension of time in 18 which to do so. See Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004) ("The 19 failure of the plaintiff eventually to respond to the court's ultimatum-either by amending 20 the complaint or by indicating to the court that [he] will not do so-is properly met with 21 the sanction of a Rule 41 (b) dismissal."). 22 II. 23 Conclusion and Order Accordingly, the Court DISMISSES this civil action in its entirety without further 24 leave to amend based on Plaintiffs failure to state a claim upon which § 1983 relief can 25 be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and§ 1915A(b)(l), and his failure to 26 prosecute pursuant to FED. R. Crv. P. 41(b) in compliance with the Court's February 2, 27 2017 Order (ECF No. 7). 28 III 2 3:16-cv-01426-WQH-BLM 1 The Court further CERTIFIES that an IFP appeal would not be taken in good 2 faith pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final 3 judgment of dismissal and to close the file. 4 IT IS SO ORDERED. 5 6 7 8 Dated: ~_!/!? HON. WILLIAM Q. United States n· s 1ct Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 3: 16-cv-01426-WQH-BLM

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