McKinley Jr. v. Ruddy (NP) et al

Filing 4

ORDER DISMISSING Action for Failure to State a Claim and Failure to Prosecute. Signed by Judge Cynthia Bashant on 11/8/17.(All non-registered users served via U.S. Mail Service)(dlg)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 DONNIE RAY McKINLEY, JR., CDCR #H83058, vs. 14 16 ORDER DISMISSING CIVIL ACTION FOR (1) FAILURE TO STATE A CLAIM AND (2) FAILURE TO PROSECUTE Plaintiff, 13 15 Case No. 17-cv-0154-BAS-WVG J. RUDDY, et al., Defendants. 17 Donnie Ray McKinley, Jr. (“Plaintiff”), while housed at Centinela State Prison 18 located in Imperial, California, and proceeding pro se, filed this civil rights action pursuant 19 to 42 U.S.C. §1983. (ECF No. 1). On May 16, 2017, the Court granted Plaintiff leave to 20 proceed in forma pauperis, but dismissed his Complaint for failing to state a claim upon 21 which relief can be granted pursuant to 28 U.S.C. §1915(e)(2)(B) and §1915A(b). (See 22 ECF No. 3.) Plaintiff was informed of his various pleading deficiencies, and granted 45 23 days to file an amended complaint. (Id. at 11−12.) Plaintiff was further cautioned that his 24 failure to amend would result in the dismissal of his case. (Id. at 12 (citing Lira v. Herrera, 25 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the 26 opportunity to fix his complaint, a district court may convert the dismissal of the complaint 27 into a dismissal of the entire action.”)).) More than five months have passed since the 28 Court’s May 16, 2017, 2017 Order, and Plaintiff’s Amended Complaint was due on or 1 17cv0154 1 about July 1, 2017. But to date, Plaintiff has failed to file an amended complaint. “The 2 failure of the plaintiff eventually to respond to the court’s ultimatum–either by amending 3 the complaint or by indicating to the court that [he] will not do so–is properly met with the 4 sanction of a Rule 41(b) dismissal.” Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th 5 Cir. 2004). 6 Accordingly, the Court DISMISSES this civil action in its entirety without prejudice 7 based on Plaintiff’s failure to state a claim upon which § 1983 relief can be granted pursuant 8 to 28 U.S.C. §1915(e)(2)(B) and §1915A(b), and his failure to prosecute pursuant to Fed. 9 R. Civ. P. 41(b) in compliance with the Court’s May 16, 2017 Order (ECF No. 3). The 10 Court further CERTIFIES that an IFP appeal would not be taken in good faith pursuant to 11 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final judgment of dismissal and 12 close the file. 13 IT IS SO ORDERED. 14 DATED: November 8, 2017 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 17cv0154

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