Wyatt v. Pinuelas

Filing 4

ORDER DISMISSING CASE without further leave to amend. Signed by Judge Gonzalo P. Curiel on 3/9/17.(All non-registered users served via U.S. Mail Service)(dlg)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12

RALPH WYATT,
CDCR #AE-2425,

Case No. 3:16-cv-01553-GPC-DHB

13
vs.

14
15

ORDER DISMISSING CIVIL
ACTION FOR FAILING TO
STATE A CLAIM PURSUANT
TO 28 U.S.C. § 1915(e)(2)(B)(ii) AND
§ 1915A(b)(1) AND FOR FAILING
TO PROSECUTE IN COMPLIANCE
WITH COURT ORDER REQUIRING
AMENDMENT

Plaintiff,

C/O J. PINUELAS,
Defendant.

16
17
18

RALPH WYATT (“Plaintiff”), proceeding pro se, and while incarcerated at the

19
20

California State Prison Substance Abuse Treatment Facility in Corcoran, California, filed

21

this civil rights action pursuant to 42 U.S.C. § 1983, claiming that Calipatria State Prison

22

Correctional Officer Pinuelas failed to protect him from an attack by another inmate

23

while he was incarcerated there in March 2015. (ECF No. 1 at 2.)

24

I.

Procedural Background

25

On December 13, 2016, the Court granted Plaintiff leave to proceed in forma

26

pauperis (“IFP”), but dismissed his Complaint sua sponte for failing to state a claim upon

27

which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1)

28

(ECF No. 3). Specifically, the Court found Plaintiff failed to allege facts sufficient to
1
3:16-cv-01553-GPC-DHB

1

show he faced a “substantial risk of serious harm” or that Defendant Pinuelas acted with

2

“deliberate indifference” to that risk. (Id. at 5, citing Farmer v. Brennan, 511 U.S. 825,

3

837 (1994); Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010).) The Court also

4

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

5

pleading deficiencies. (Id. at 7, citing Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.

6

2000) (en banc) (noting that leave to amend should be granted when complaint is

7

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

8

correct the defect.”).)

9

Plaintiff was explicitly warned that should he fail to amend within the time

10

granted, the Court would “enter a final Order dismissing this civil action based both on

11

his failure to state a claim upon which § 1983 relief can be granted … and his failure to

12

prosecute in compliance with a court order requiring amendment.” (ECF No. 3 at 8,

13

citing Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take

14

advantage of the opportunity to fix his complaint, a district court may convert the

15

dismissal of the complaint into a dismissal of the entire action.”)).

16

More than two months have passed since the Court’s December 13, 2016 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 Plaintiff’s 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)(1), and his failure to

26

prosecute pursuant to FED. R. CIV. P. 41(b) in compliance with the Court’s December 13,

27

2016 Order (ECF No. 3).

28

///
2
3:16-cv-01553-GPC-DHB

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
5

IT IS SO ORDERED
Dated: March 9, 2017

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
3:16-cv-01553-GPC-DHB