Rivera v. Murillo et al

Filing 8

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)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 CESAR RIVERA, Inmate #16152631, Case No. 3:16-cv-02979-LAB-JLB 13 vs. 14 15 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 Plaintiff, EMURILSH MURILLO, et al., Defendants. 16 17 18 19 CESAR RIVERA (“Plaintiff”), proceeding pro se, and while detained and/or 20 serving his sentence in local custody at the San Diego County Sheriff Department’s East 21 Mesa Reentry Facility (“EMRF”), filed this civil rights action pursuant to 42 U.S.C. 22 § 1983. In his Complaint, Plaintiff alleged several EMRF officials placed him and 29 23 other inmates on lockdown for more than a month, denied them showers for 96 hours, 24 and refused to provide them with stationary and “hygiene packs” in violation of the 25 Eighth Amendment. (ECF No. 1 at 3.) 26 I. Procedural History 27 On April 20, 2017, the Court granted Plaintiff leave to proceed in forma pauperis, 28 but dismissed his Complaint for failing to state a claim upon which relief can be granted 1 3:16-cv-02979-LAB-JLB 1 pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). See ECF No. 6. Plaintiff was 2 informed of his various pleading deficiencies, and granted 45 days leave in which to file 3 an Amended Complaint that fixed them. Id. at 5-7. Plaintiff was further cautioned that his 4 failure to amend would result in the dismissal of his case. (Id. at 8, citing Lira v. Herrera, 5 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the 6 opportunity to fix his complaint, a district court may convert the dismissal of the 7 complaint into a dismissal of the entire action.”)). 8 9 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 10 in which to do so. “The failure of the plaintiff eventually to respond to the court’s 11 ultimatum–either by amending the complaint or by indicating to the court that [he] will 12 not do so–is properly met with the sanction of a Rule 41(b) dismissal.” Edwards v. Marin 13 Park, 356 F.3d 1058, 1065 (9th Cir. 2004). 14 II. 15 Conclusion and Order Accordingly, the Court DISMISSES this civil action in its entirety without 16 prejudice based on Plaintiff’s failure to state a claim upon which § 1983 relief can be 17 granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and his failure to 18 prosecute pursuant to FED. R. CIV. P. 41(b) in compliance with the Court’s April 20, 2017 19 Order (ECF No. 6). 20 The Court further CERTIFIES that an IFP appeal would not be taken in good 21 faith pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final 22 judgment of dismissal and close the file. 23 IT IS SO ORDERED. 24 25 26 27 28 Dated: July 24, 2017 _____________________________________ HON. LARRY ALAN BURNS United States District Judge 2 3:16-cv-02979-LAB-JLB

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