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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Plaintiff,

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vs.

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Case No. 3:16-cv-01426-WQH-BLM

JASON HOLLINGSWORTH,
CDCR #AX-5810,

CALIFORNIA DEP'T OF
CORRECTIONS, et al.,

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Defendants.

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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

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Jason Hollingsworth ("Plaintiff'), proceeding pro se, and while incarcerated at

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Richard J. Donovan Correctional Facility in San Diego, California, initially filed this civil

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rights action pursuant to 42 U.S.C. § 1983 on June 6, 2016, claiming that prison officials

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were in violation of the "Davis Bacon Act of 1931" and violated his right to equal

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protection under the laws. (See Compl. at 4-6.)

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III

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III

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III

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III
3:16-cv-01426-WQH-BLM

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I.

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Procedural Background

On August 5, 2016, the Court granted Plaintiff leave to proceed in forma pauperis

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("IFP"), but dismissed his Complaint sua sponte for failing to state a claim upon which

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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
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cured these pleading deficiencies. (Id. at 8-9; see Lopez v. Smith, 203 F.3d 1122, 1130

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(9th Cir. 2000) (en bane) (noting that leave to amend should be granted when complaint

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is dismissed sua sponte under § 1915 "if it appears at all possible that the plaintiff can

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correct the defect.").)

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Plaintiff filed his First Amended Complaint ("FAC") on August 24, 2016. (ECF

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No. 6). However, the Court once again found dismissal of the entire action appropriate

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on the grounds that he had failed to state a claim upon which relief could be granted

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pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and§ 1915A(b)(l). (ECF No. 7). Again, the

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Court granted Plaintiff 45 days in which to file an Amended Complaint that cured these

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pleading deficiencies. (Id. at 6.)

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More than 45 days has since passed since the Court's February 2, 2017 Order.

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Plaintiff has filed no Amended Complaint; nor has he requested an extension of time in

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which to do so. See Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004) ("The

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failure of the plaintiff eventually to respond to the court's ultimatum-either by amending

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the complaint or by indicating to the court that [he] will not do so-is properly met with

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the sanction of a Rule 41 (b) dismissal.").

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II.

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Conclusion and Order

Accordingly, the Court DISMISSES this civil action in its entirety without further

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leave to amend based on Plaintiffs failure to state a claim upon which § 1983 relief can

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be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and§ 1915A(b)(l), and his failure to

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prosecute pursuant to FED. R. Crv. P. 41(b) in compliance with the Court's February 2,

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2017 Order (ECF No. 7).

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III
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3:16-cv-01426-WQH-BLM

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The Court further CERTIFIES that an IFP appeal would not be taken in good

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faith pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final

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judgment of dismissal and to close the file.

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IT IS SO ORDERED.

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Dated:

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HON. WILLIAM Q.

United States n·

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1ct Judge

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3: 16-cv-01426-WQH-BLM