Makoni v. Downs et al

Filing 15

ORDER DISMISSING Civil Action Without Prejudice for Lack of Proper Venue Pursuant to 28 U.S.C. 1406(a) and for Failing to Prosecute Pursuant to Fed. R. Civ. P. 41(b). The Court certifies that an IFP appeal would not be taken in good faith pursuant to 28 U.S.C. 1915(a)(3). Signed by Judge Anthony J. Battaglia on 6/8/2017.(All non-registered users served via U.S. Mail Service)(lrf)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 ROBERT SIMBA MAKONI, Former Booking #16143756, ORDER DISMISSING CIVIL ACTION WITHOUT PREJUDICE FOR LACK OF PROPER VENUE PURSUANT TO 28 U.S.C. § 1406(a) AND FOR FAILING TO PROSECUTE PURSUANT TO Fed. R. Civ. P. 41(b) Plaintiff, 13 vs. 14 15 Case No. 3:16-cv-02335-AJB-WVG ROBERT DOWNS, et al., Defendants. 16 17 18 19 ROBERT SIMBA MAKONI (“Plaintiff”), proceeding pro se, and while detained 20 at the San Diego Sheriff’s Department Vista Detention Facility (“VDF”), filed this civil 21 rights action pursuant to 42 U.S.C. § 1983 on September 13, 2016, claiming he was 22 subject to abuse and was denied medical attention by Prisoner Transportation Services of 23 America employees, two Gwinnett and Clayton County Georgia Sheriff’s Department 24 officials, and a doctor employed by the Clayton County Jail,1 during a 28-day cross- 25 country extradition transport from VDF to Clayton County, Georgia, beginning in 26 27 1 28 While Plaintiff was detained at VDF at the time of filing, no Defendant was alleged to reside in either San Diego or Imperial County. See 28 U.S.C. § 1391(b)(1). 1 3:16-cv-02335-AJB-WVG 1 November 2015. (ECF No. 1 at 2-16.)2 2 I. Procedural Background On December 13, 2016, the Court denied Plaintiff’s Motion to Proceed In Forma 3 4 Pauperis (“IFP”), as well as his Motions for a Temporary Restraining Order and 5 Appointment of Counsel (ECF No. 10). At the same time, the Court granted Plaintiff 6 leave to supplement his Complaint (ECF No. 9), but sua sponte screened both Plaintiff’s 7 original pleading, as well as his proposed supplemental claims, and dismissed them 8 without prejudice based on his failure to allege proper venue in the Southern District of 9 California pursuant to 28 U.S.C. § 1391(b). (Id. at 10-11.) Plaintiff was granted leave to 10 re-open his case by either paying the civil filing fee required by 28 U.S.C. § 1914(a), or 11 submitting a properly supported Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a), 12 and by filing a First Amended Complaint alleging facts sufficient to demonstrate the 13 Southern District of California as the proper venue within 30 days. (Id. at 11.) 14 On January 21, 2017, Plaintiff filed a new Motion to Proceed IFP (ECF No. 11), 15 but no Amended Complaint. A week later, on January 27, 2017, Plaintiff requested an 16 extension of time in which to amend (ECF No. 13). On February 22, 2017, the Court 17 granted both Motions, and directed Plaintiff to file his First Amended Complaint on or 18 before April 3, 2017 (ECF No. 14). 19 More than three months have passed since the Court’s February 22, 2017 Order, 20 but Plaintiff has taken no action. He did not file a First Amended Complaint within the 21 time permitted; nor has he requested another extension of time in which to do so. 22 “If a plaintiff does not take advantage of the opportunity to fix his complaint, a 23 district court may convert the dismissal of the complaint into a dismissal of the entire 24 action.” Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005); see also Edwards v. Marin 25 Park, 356 F.3d 1058, 1065 (9th Cir. 2004) (“The failure of the plaintiff eventually to 26 27 2 28 On October 24, 2016, Plaintiff filed a Notice of Change of Address indicating his subsequent release from VDF custody. (ECF No. 7). 2 3:16-cv-02335-AJB-WVG 1 respond to the court’s ultimatum–either by amending the complaint or by indicating to 2 the court that [he] will not do so–is properly met with the sanction of a Rule 41(b) 3 dismissal.”). 4 II. 5 Conclusion and Order Accordingly, the Court DISMISSES this civil action in its entirety without 6 prejudice based on its lack of proper venue pursuant to 28 U.S.C. § 1406(a), and 7 Plaintiff’s failure to prosecute pursuant to FED. R. CIV. P. 41(b) in compliance with the 8 Court’s December 13, 2016, and February 22, 2017 Orders (ECF Nos. 10, 14). 9 The Court further CERTIFIES that an IFP appeal would not be taken in good 10 faith pursuant to 28 U.S.C. § 1915(a)(3), DIRECTS the Clerk to enter a final judgment 11 of dismissal without prejudice, and to close the file. 12 13 IT IS SO ORDERED. Dated: June 8, 2017 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 3:16-cv-02335-AJB-WVG

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