Makoni v. Schroeder et al

Filing 12

ORDER Dismissing Civil Action for Failing to State a Claim and for Failing to Prosecute in Compliance with Court Orders Requiring Amendment. Signed by Judge Roger T. Benitez on 7/31/2017.(All non-registered users served via U.S. Mail Service)(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ROBERT SIMBA MAKONI,

Case No. 3:16-cv-02497-BEN-PCL
Plaintiff,

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vs.

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COMMANDER EDWIN SCHROEDER,
et al.,

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Defendants.
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ORDER DISMISSING CIVIL
ACTION FOR FAILING TO
STATE A CLAIM PURSUANT
TO 28 U.S.C. § 1915(e)(2) AND
§ 1915A(b) AND FOR FAILING TO
PROSECUTE IN COMPLIANCE
WITH COURT ORDERS
REQUIRING AMENDMENT

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ROBERT SIMBA MAKONI ("Plaintiff'), proceeding prose, and while detained

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at the Vista Detention Facility ("VDF") in Vista, California, filed a civil rights Complaint

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pursuant to 42 U.S.C. § 1983 in October 2016 (ECF No. 1). Plaintiff claimed that while

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he was in their custody, VDF officials failed to address his medical needs, threatened him

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when he complained, and segregated him based on race. (Id. at 7-14.)

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I.

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Procedural Background
On December 19, 2017, the Court denied Plaintiffs motions seeking injunctive

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relief, appointment of counsel, and his initial request to proceed in forma pauperis

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("IFP"), but granted him leave to either prepay the civil filing fee required by 28 U.S.C.

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§ 1914(a), or file a renewed, properly supported IFP Motion (ECF No. 6).
3:16-cv-02497-BEN-PCL

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Plaintiff filed a renewed IFP Motion (ECF No. 7), and on February 28, 2017, the

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Court granted Plaintiff leave to proceed IFP, but dismissed his Complaint sua sponte for

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failing to state a claim upon which relief can be granted pursuant to 28 U.S.C.

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§ 1915(e)(2) and§ 1915A(b) (ECF No. 8).

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In its February 28, 2017 Order, the Court informed Plaintiff of his various pleading

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deficiencies, and granted him 45 days leave in which to file an Amended Complaint in

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order to fix them. Id. at 4-13; Lucas v. Dep 't of Corr., 66 F.3d 245, 248 (9th Cir. 1995)

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(per curiam) (unless it is clear the deficiencies in a complaint cannot be cured, prose

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litigants are generally entitled to notice of their pleading deficiencies and an opportunity

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to amend prior to the dismissal of an action); see also Lopez v. Smith, 203 F.3d 1122,

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1126-30 (9th Cir. 2000) (en bane).

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After the deadline for amendment elapsed, Plaintiff requested an extension of time

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in which to amend (ECF No. 10). On May 5, 2017, the Court granted Plaintiffs request,

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and directed him to amend no later than May 26, 2017. See ECFNo. 11at1-2.

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Five months have passed since the Court first dismissed Plaintiffs Complaint, and

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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, 356F.3d1058, 1065 (9th Cir. 2004).

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II.

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

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leave to amend based on Plaintiffs failure to state a claim upon which § 1983 relief can

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

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prosecute pursuant to FED. R. C1v. P. 41(b) in compliance with the Court's February 28,

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2017 and May 5, 2017 Orders (ECF Nos. 8, 11).

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The Court further CERTIFIES that an IFP appeal would not be taken in good
faith pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final

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IT IS SO ORDERED.

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Dored,?;

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ITEZ

United States District Judge

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