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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CESAR RIVERA,
Inmate #16152631,

Case No. 3:16-cv-02979-LAB-JLB

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vs.

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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 ORDER
REQUIRING AMENDMENT

Plaintiff,

EMURILSH MURILLO, et al.,
Defendants.

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CESAR RIVERA (“Plaintiff”), proceeding pro se, and while detained and/or

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serving his sentence in local custody at the San Diego County Sheriff Department’s East

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Mesa Reentry Facility (“EMRF”), filed this civil rights action pursuant to 42 U.S.C.

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§ 1983. In his Complaint, Plaintiff alleged several EMRF officials placed him and 29

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other inmates on lockdown for more than a month, denied them showers for 96 hours,

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and refused to provide them with stationary and “hygiene packs” in violation of the

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Eighth Amendment. (ECF No. 1 at 3.)

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I.

Procedural History

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On April 20, 2017, the Court granted Plaintiff leave to proceed in forma pauperis,

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but dismissed his Complaint for failing to state a claim upon which relief can be granted
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3:16-cv-02979-LAB-JLB

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pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). See ECF No. 6. Plaintiff was

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informed of his various pleading deficiencies, and granted 45 days leave in which to file

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an Amended Complaint that fixed them. Id. at 5-7. Plaintiff was further cautioned that his

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failure to amend would result in the dismissal of his case. (Id. at 8, citing Lira v. Herrera,

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427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the

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opportunity to fix his complaint, a district court may convert the dismissal of the

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complaint into a dismissal of the entire action.”)).

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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

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in which to do so. “The failure of the plaintiff eventually to respond to the court’s

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ultimatum–either by amending the complaint or by indicating to the court that [he] will

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not do so–is properly met with the sanction of a Rule 41(b) dismissal.” Edwards v. Marin

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Park, 356 F.3d 1058, 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

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prejudice based on Plaintiff’s failure to state a claim upon which § 1983 relief can be

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

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prosecute pursuant to FED. R. CIV. P. 41(b) in compliance with the Court’s April 20, 2017

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Order (ECF No. 6).

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The Court further CERTIFIES that an IFP appeal would not be taken in good

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faith pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final

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judgment of dismissal and close the file.

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IT IS SO ORDERED.

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Dated: July 24, 2017
_____________________________________
HON. LARRY ALAN BURNS
United States District Judge
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3:16-cv-02979-LAB-JLB