Sconce v. Paramo et al

Filing 13

ORDER dismissing civil action without prejudice for failing to state a claim pursuant to 28 USC 1915(e)(2) and 1915A(b) and for failing to prosecute in compliance with Court Order requiring Amendment. The Court further certifies that an IFP appeal would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). Signed by Judge John A. Houston on 12/21/2017.(All non-registered users served via U.S. Mail Service)(jpp).

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12

DAVID W. SCONCE,
CDCR #AP-3966,

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,

13
vs.

14
15

Case No. 3:17-cv-00187-JAH-AGS

D. PARAMO, et al.,
Defendants.

16
17
18
19
20

I.

Procedural History
DAVID W. SCONCE (“Plaintiff”), incarcerated at Richard J. Donovan

21

Correctional Facility (“RJD”) in San Diego, California, is proceeding pro se in this civil

22

rights action, filed pursuant to 42 U.S.C. § 1983. At the time he filed his Complaint,

23

Plaintiff did not prepay the $400 filing fee mandated by 28 U.S.C. § 1914(a); instead, he

24

filed a Motion to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a)

25

(ECF No. 2).

26

On June 21, 2017, the Court granted Plaintiff leave to proceed IFP, conducted its

27

mandatory initial screening of Plaintiff’s Complaint, and dismissed it sua sponte for

28

failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b) (ECF No. 9).
1
3:17-cv-00187-JAH-AGS

1

The Court also granted Plaintiff 45 days leave in which to file an Amended Complaint

2

that addressed the deficiencies of pleading it identified. (Id.). See also Lopez v. Smith,

3

203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc) (“[A] district court should grant leave

4

to amend even if no request to amend the pleading was made, unless it determines that

5

the pleading could not possibly be cured.”) (citations omitted).

6

On October 10, 2017, the Court granted Plaintiff’s request for an extension of time,

7

and gave him until November 20, 2017, to file an Amended Complaint in compliance

8

with the Court’s June 21, 2017 Order (ECF No. 12). Plaintiff was expressly cautioned

9

that his failure to amend would result in the dismissal of his case. (Id. at 3) (citing Lira v.

10

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

11

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

12

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

13

Almost six months have passed since the Court’s June 21, 2017 Order, and

14

Plaintiff has failed to file an Amended Complaint despite having been granted an

15

extension of time in which to do so. On October 10, 2017, Plaintiff was clearly informed

16

that his Amended Complaint must be filed by November 20, 2017. But to date, Plaintiff

17

has failed to amend, and he has not requested any additional requests for an extension of

18

time. “The failure of the plaintiff eventually to respond to the court’s ultimatum–either by

19

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

20

met with the sanction of a Rule 41(b) dismissal.” Edwards v. Marin Park, 356 F.3d 1058,

21

1065 (9th Cir. 2004).

22

II.

23

Conclusion and Order
Accordingly, the Court DISMISSES this civil action in its entirety without

24

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

25

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

26

prosecute pursuant to FED. R. CIV. P. 41(b) in compliance with the Court’s June 21, 2017

27

and October 10, 2017 Orders. See ECF Nos. 9, 12.

28

///
2
3:17-cv-00187-JAH-AGS

1

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

2

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

3

judgment of dismissal and close the file.

4

IT IS SO ORDERED.

5
6

Dated: December 21, 2017

7

__________________________________

8

HON. JOHN A. HOUSTON
United States District Judge

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

3
3:17-cv-00187-JAH-AGS