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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DOUGLAS LYNN RISKAS,
CDCR #AY-4846,

Case No. 3:16-cv-02317-CAB-BLM

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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,

COUNTY OF SAN DIEGO, et al.,
Defendants.

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DOUGLAS LYNN RISKAS (Plaintiff), proceeding pro se, and incarcerated at the

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California Correctional Institution in Tehachapi, California, filed this civil rights action

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pursuant to 42 U.S.C. § 1983. In his Complaint, Plaintiff alleged the County of San Diego,

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San Diego County Sheriff William Gore, and 50 unidentified deputies at George Bailey

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Detention Facility failed to protect him from assault, and failed to provide him adequate

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medical care while he was a pretrial detainee there in late 2015 and early 2016. (ECF No.

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1 at 9-23.)

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I.

Procedural Background

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On February 10, 2017, 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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3:16-cv-02317-CAB-BLM

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granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1) (ECF No. 5). Plaintiff

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was informed of his various pleading deficiencies, and granted 45 days leave in which to

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file an Amended Complaint. (Id. at 5-14.) Indeed, the Clerk of Court provided him a blank

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copy of the Court’s form § 1983 Complaint for his use in amending. (Id. at 14.)

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

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Plaintiff has not filed an Amended Complaint, nor has he requested an extension of time

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in which to do so.

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“If a plaintiff does not take advantage of the opportunity to fix his complaint, a

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district court may convert the dismissal of the complaint into a dismissal of the entire

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action.” Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005). “The failure of the plaintiff

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

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indicating to the court that [he] will not do so–is properly met with the sanction of a Rule

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41(b) dismissal.” Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004).

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II.

Conclusion and Order

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

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

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

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to FED. R. CIV. P. 41(b) in compliance with the Court’s February 10, 2017 Order (ECF No.

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5).

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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 12, 2017

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