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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DONNIE RAY McKINLEY, JR.,
CDCR #H83058,
vs.

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ORDER DISMISSING CIVIL
ACTION FOR (1) FAILURE TO
STATE A CLAIM AND (2) FAILURE
TO PROSECUTE

Plaintiff,

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Case No. 17-cv-0154-BAS-WVG

J. RUDDY, et al.,
Defendants.

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Donnie Ray McKinley, Jr. (“Plaintiff”), while housed at Centinela State Prison

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located in Imperial, California, and proceeding pro se, filed this civil rights action pursuant

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to 42 U.S.C. §1983. (ECF No. 1). On May 16, 2017, the Court granted Plaintiff leave to

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proceed in forma pauperis, but dismissed his Complaint for failing to state a claim upon

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which relief can be granted pursuant to 28 U.S.C. §1915(e)(2)(B) and §1915A(b). (See

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ECF No. 3.) Plaintiff was informed of his various pleading deficiencies, and granted 45

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days to file an amended complaint. (Id. at 11−12.) Plaintiff was further cautioned that his

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failure to amend would result in the dismissal of his case. (Id. at 12 (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 complaint

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into a dismissal of the entire action.”)).) More than five months have passed since the

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Court’s May 16, 2017, 2017 Order, and Plaintiff’s Amended Complaint was due on or
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17cv0154

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about July 1, 2017. But to date, Plaintiff has failed to file an amended complaint. “The

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failure of the plaintiff eventually to respond to the court’s ultimatum–either by amending

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the complaint or by indicating to the court that [he] will not do so–is properly met with the

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sanction of a Rule 41(b) dismissal.” Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th

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Cir. 2004).

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Accordingly, the Court DISMISSES this civil action in its entirety without prejudice

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

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

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R. Civ. P. 41(b) in compliance with the Court’s May 16, 2017 Order (ECF No. 3). The

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Court further CERTIFIES that an IFP appeal would not be taken in good faith pursuant to

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28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final judgment of dismissal and

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close the file.

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IT IS SO ORDERED.

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DATED: November 8, 2017

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