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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i::-11 1 .i IC...,, • • 1 2 ,-·o L._ - 17 AUG - I PM 3: 24 3 4 &Y: '4)5 5 !)EP!J7 \ 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERT SIMBA MAKONI, Case No. 3:16-cv-02497-BEN-PCL Plaintiff, 12 13 vs. 14 COMMANDER EDWIN SCHROEDER, et al., 15 Defendants. 16 17 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 18 19 ROBERT SIMBA MAKONI ("Plaintiff'), proceeding prose, and while detained 20 at the Vista Detention Facility ("VDF") in Vista, California, filed a civil rights Complaint 21 pursuant to 42 U.S.C. § 1983 in October 2016 (ECF No. 1). Plaintiff claimed that while 22 he was in their custody, VDF officials failed to address his medical needs, threatened him 23 when he complained, and segregated him based on race. (Id. at 7-14.) 24 I. 25 Procedural Background On December 19, 2017, the Court denied Plaintiffs motions seeking injunctive 26 relief, appointment of counsel, and his initial request to proceed in forma pauperis 27 ("IFP"), but granted him leave to either prepay the civil filing fee required by 28 U.S.C. 28 § 1914(a), or file a renewed, properly supported IFP Motion (ECF No. 6). 3:16-cv-02497-BEN-PCL 1 Plaintiff filed a renewed IFP Motion (ECF No. 7), and on February 28, 2017, the 2 Court granted Plaintiff leave to proceed IFP, but dismissed his Complaint sua sponte for 3 failing to state a claim upon which relief can be granted pursuant to 28 U.S.C. 4 § 1915(e)(2) and§ 1915A(b) (ECF No. 8). 5 In its February 28, 2017 Order, the Court informed Plaintiff of his various pleading 6 deficiencies, and granted him 45 days leave in which to file an Amended Complaint in 7 order to fix them. Id. at 4-13; Lucas v. Dep 't of Corr., 66 F.3d 245, 248 (9th Cir. 1995) 8 (per curiam) (unless it is clear the deficiencies in a complaint cannot be cured, prose 9 litigants are generally entitled to notice of their pleading deficiencies and an opportunity 10 to amend prior to the dismissal of an action); see also Lopez v. Smith, 203 F.3d 1122, 11 1126-30 (9th Cir. 2000) (en bane). 12 After the deadline for amendment elapsed, Plaintiff requested an extension of time 13 in which to amend (ECF No. 10). On May 5, 2017, the Court granted Plaintiffs request, 14 and directed him to amend no later than May 26, 2017. See ECFNo. 11at1-2. 15 Five months have passed since the Court first dismissed Plaintiffs Complaint, and 16 two more have passed since Plaintiffs extension of time expired. But he has yet to file an 17 Amended Complaint, or to request another extension of time in which to do so. 18 "If a plaintiff does not take advantage of the opportunity to fix his complaint, a 19 district court may convert the dismissal of the complaint into a dismissal of the entire 20 action." Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005). "The failure of the plaintiff 21 eventually to respond to the court's ultimatum-either by amending the complaint or by 22 indicating to the court that [he] will not do so-is properly met with the sanction of a Rule 23 41(b) dismissal." Edwards v. Marin Park, 356F.3d1058, 1065 (9th Cir. 2004). 24 II. 25 Conclusion and Order Accordingly, the Court DISMISSES this civil action in its entirety without further 26 leave to amend based on Plaintiffs failure to state a claim upon which § 1983 relief can 27 be granted pursuant to 28 U.S.C. § 1915(e)(2) and§ 1915A(b), and his failure to 28 /// 2 3: 16-cv-02497-BEN-PCL 1 prosecute pursuant to FED. R. C1v. P. 41(b) in compliance with the Court's February 28, 2 2017 and May 5, 2017 Orders (ECF Nos. 8, 11). 3 4 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 5 judgment of dismissal and to close the file. 6 IT IS SO ORDERED. 7 8 9 10 Dored,?; ~'?- ITEZ United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 3: 16-cv-02497-BEN-PCL

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