Rivera v. Murillo et al
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 Order Requiring Amendment. Signed by Judge Larry Alan Burns on 7/24/2017.(All non-registered users served via U.S. Mail Service)(lrf)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Case No. 3:16-cv-02979-LAB-JLB
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 ORDER
EMURILSH MURILLO, et al.,
CESAR RIVERA (“Plaintiff”), proceeding pro se, and while detained and/or
serving his sentence in local custody at the San Diego County Sheriff Department’s East
Mesa Reentry Facility (“EMRF”), filed this civil rights action pursuant to 42 U.S.C.
§ 1983. In his Complaint, Plaintiff alleged several EMRF officials placed him and 29
other inmates on lockdown for more than a month, denied them showers for 96 hours,
and refused to provide them with stationary and “hygiene packs” in violation of the
Eighth Amendment. (ECF No. 1 at 3.)
On April 20, 2017, the Court granted Plaintiff leave to proceed in forma pauperis,
but dismissed his Complaint for failing to state a claim upon which relief can be granted
pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). See ECF No. 6. Plaintiff was
informed of his various pleading deficiencies, and granted 45 days leave in which to file
an Amended Complaint that fixed them. Id. at 5-7. Plaintiff was further cautioned that his
failure to amend would result in the dismissal of his case. (Id. at 8, citing Lira v. Herrera,
427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the
opportunity to fix his complaint, a district court may convert the dismissal of the
complaint into a dismissal of the entire action.”)).
More than three months have passed since the Court’s April 20, 2017 Order. But
Plaintiff has not filed an Amended Complaint, nor has he requested an extension of time
in which to do so. “The failure of the plaintiff eventually to respond to the court’s
ultimatum–either by amending the complaint or by indicating to the court that [he] will
not do so–is properly met with the sanction of a Rule 41(b) dismissal.” Edwards v. Marin
Park, 356 F.3d 1058, 1065 (9th Cir. 2004).
Conclusion and Order
Accordingly, the Court DISMISSES this civil action in its entirety without
prejudice based on Plaintiff’s failure to state a claim upon which § 1983 relief can be
granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and his failure to
prosecute pursuant to FED. R. CIV. P. 41(b) in compliance with the Court’s April 20, 2017
Order (ECF No. 6).
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
judgment of dismissal and close the file.
IT IS SO ORDERED.
Dated: July 24, 2017
HON. LARRY ALAN BURNS
United States District Judge
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