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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 BENJAMIN SPENCER, Booking #16143756, Case No. 3:16-cv-02313-CAB-KSC 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, CITY OF VISTA, et al., Defendants. 16 17 18 19 BENJAMIN SPENCER (“Plaintiff”), proceeding pro se, and while detained at the 20 San Diego Sheriff’s Department Vista Detention Facility (“VDF”), filed this civil rights 21 action pursuant to 42 U.S.C. § 1983 on September 6, 2016, alleging excessive force at the 22 time of his arrest, and negligence on the part of unidentified VDF staff when he was later 23 attacked by a fellow detainee. (ECF No. 1 at 4.) 24 I. Procedural Background 25 On December 9, 2016, the Court granted Plaintiff leave to proceed in forma pauperis 26 (“IFP”), but dismissed his Complaint for failing to state a claim upon which relief can be 27 granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1) (ECF No. 3). Plaintiff 28 was informed of his pleading deficiencies, and granted leave to amend them. (Id. at 5-9.) 1 3:16-cv-02313-CAB-KSC 1 On January 21, 2017, Plaintiff filed a First Amended Complaint (ECF No. 4), 2 followed a week later by a Motion to Appoint Counsel (ECF No. 6). On February 10, 2017, 3 the Court denied Plaintiff’s Motion, and sua sponte dismissed his First Amended 4 Complaint, again because it failed to state a claim (ECF No. 7). Plaintiff was once more 5 apprised of his pleading deficiencies, and granted leave to file a Second Amended 6 Complaint within 45 days. (Id. at 9-10.) 7 Almost four months have passed since the Court’s February 10, 2017 Order. Plaintiff 8 has not filed a Second Amended Complaint; nor has he requested an extension of time in 9 which to do so. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff 10 does not take advantage of the opportunity to fix his complaint, a district court may convert 11 the dismissal of the complaint into a dismissal of the entire action.”); Edwards v. Marin 12 Park, 356 F.3d 1058, 1065 (9th Cir. 2004) (“The failure of the plaintiff eventually to 13 respond to the court’s ultimatum–either by amending the complaint or by indicating to the 14 court that [he] will not do so–is properly met with the sanction of a Rule 41(b) dismissal.”). 15 II. Conclusion and Order 16 Accordingly, the Court DISMISSES this civil action in its entirety without further 17 leave to amend based on Plaintiff’s failure to state a claim upon which § 1983 relief can be 18 granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1), and his failure to 19 prosecute pursuant to FED. R. CIV. P. 41(b) in compliance with the Court’s February 10, 20 2017 Order (ECF No. 7). 21 The Court further CERTIFIES that an IFP appeal would not be taken in good faith 22 pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final judgment of 23 dismissal and to close the file. 24 IT IS SO ORDERED. 25 Dated: June 8, 2017 26 27 28 2 3:16-cv-02313-CAB-KSC

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