Spencer v. Vista, City of et al

Filing 8

ORDER Dismissing Civil Action for Failing to State a Claim Pursuant to 28 U.S.C. 1915(e)(2)(B)(ii) and 1915 (b)(1) and for Failing to Prosecute in Compliance with Court Order Requiring Amendment. Signed by Judge Cathy Ann Bencivengo on 6/8/2017. (All non-registered users served via U.S. Mail Service)(jjg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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BENJAMIN SPENCER,
Booking #16143756,

Case No. 3:16-cv-02313-CAB-KSC

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vs.

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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)(1) AND FOR FAILING
TO PROSECUTE IN COMPLIANCE
WITH COURT ORDER
REQUIRING AMENDMENT

Plaintiff,

CITY OF VISTA, et al.,
Defendants.

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BENJAMIN SPENCER (“Plaintiff”), proceeding pro se, and while detained at the

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San Diego Sheriff’s Department Vista Detention Facility (“VDF”), filed this civil rights

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action pursuant to 42 U.S.C. § 1983 on September 6, 2016, alleging excessive force at the

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time of his arrest, and negligence on the part of unidentified VDF staff when he was later

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attacked by a fellow detainee. (ECF No. 1 at 4.)

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I.

Procedural Background

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On December 9, 2016, the Court granted Plaintiff leave to proceed in forma pauperis

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(“IFP”), but dismissed his Complaint for failing to state a claim upon which relief can be

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granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1) (ECF No. 3). Plaintiff

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was informed of his pleading deficiencies, and granted leave to amend them. (Id. at 5-9.)
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3:16-cv-02313-CAB-KSC

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On January 21, 2017, Plaintiff filed a First Amended Complaint (ECF No. 4),

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followed a week later by a Motion to Appoint Counsel (ECF No. 6). On February 10, 2017,

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the Court denied Plaintiff’s Motion, and sua sponte dismissed his First Amended

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Complaint, again because it failed to state a claim (ECF No. 7). Plaintiff was once more

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apprised of his pleading deficiencies, and granted leave to file a Second Amended

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Complaint within 45 days. (Id. at 9-10.)

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Almost four months have passed since the Court’s February 10, 2017 Order. Plaintiff

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has not filed a Second Amended Complaint; nor has he requested an extension of time in

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which to do so. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff

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does not take advantage of the opportunity to fix his complaint, a district court may convert

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the dismissal of the complaint into a dismissal of the entire action.”); Edwards v. Marin

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Park, 356 F.3d 1058, 1065 (9th Cir. 2004) (“The failure of the plaintiff eventually to

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respond to the court’s ultimatum–either by amending the complaint or by indicating to the

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court that [he] will not do so–is properly met with the sanction of a Rule 41(b) dismissal.”).

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II.

Conclusion and Order

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

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leave to amend based on Plaintiff’s failure to state a claim upon which § 1983 relief can be

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granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1), and his failure to

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prosecute pursuant to FED. R. CIV. P. 41(b) in compliance with the Court’s February 10,

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2017 Order (ECF No. 7).

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

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

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dismissal and to close the file.

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IT IS SO ORDERED.

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Dated: June 8, 2017

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