Riskas v. San Diego, County of et al

Filing 7

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. Signed by Judge Cathy Ann Bencivengo on 6/12/2017. (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 DOUGLAS LYNN RISKAS, CDCR #AY-4846, Case No. 3:16-cv-02317-CAB-BLM 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, COUNTY OF SAN DIEGO, et al., Defendants. 16 17 18 19 DOUGLAS LYNN RISKAS (Plaintiff), proceeding pro se, and incarcerated at the 20 California Correctional Institution in Tehachapi, California, filed this civil rights action 21 pursuant to 42 U.S.C. § 1983. In his Complaint, Plaintiff alleged the County of San Diego, 22 San Diego County Sheriff William Gore, and 50 unidentified deputies at George Bailey 23 Detention Facility failed to protect him from assault, and failed to provide him adequate 24 medical care while he was a pretrial detainee there in late 2015 and early 2016. (ECF No. 25 1 at 9-23.) 26 I. Procedural Background 27 On February 10, 2017, the Court granted Plaintiff leave to proceed in forma pauperis 28 (IFP), but dismissed his Complaint for failing to state a claim upon which relief can be 1 3:16-cv-02317-CAB-BLM 1 granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1) (ECF No. 5). Plaintiff 2 was informed of his various pleading deficiencies, and granted 45 days leave in which to 3 file an Amended Complaint. (Id. at 5-14.) Indeed, the Clerk of Court provided him a blank 4 copy of the Court’s form § 1983 Complaint for his use in amending. (Id. at 14.) 5 Almost four months have passed since the Court’s February 10, 2017 Order. But 6 Plaintiff has not filed an Amended Complaint, nor has he requested an extension of time 7 in which to do so. 8 “If a plaintiff does not take advantage of the opportunity to fix his complaint, a 9 district court may convert the dismissal of the complaint into a dismissal of the entire 10 action.” Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005). “The failure of the plaintiff 11 eventually to respond to the court’s ultimatum–either by amending the complaint or by 12 indicating to the court that [he] will not do so–is properly met with the sanction of a Rule 13 41(b) dismissal.” Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004). 14 II. Conclusion and Order 15 Accordingly, the Court DISMISSES this civil action in its entirety without prejudice 16 based on Plaintiff’s failure to state a claim upon which § 1983 relief can be granted pursuant 17 to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1), and his failure to prosecute pursuant 18 to FED. R. CIV. P. 41(b) in compliance with the Court’s February 10, 2017 Order (ECF No. 19 5). 20 The Court further CERTIFIES that an IFP appeal would not be taken in good faith 21 pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final judgment of 22 dismissal and to close the file. 23 IT IS SO ORDERED. 24 Dated: June 12, 2017 25 26 27 28 2 3:16-cv-02317-CAB-BLM

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