Parmer v. San Diego County Jail et al

Filing 16

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. The Court dismisses this civil action in its ent irety without prejudice based on Plaintiff's failure to state a claim upon which § 1983 relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and §1915A(b), and his failure to prosecute pursuant to FED. R. CIV. P. 41(b) i n compliance with the Court's August 30, 2017 and November 16, 2017 Orders. 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 Janis L. Sammartino on 1/12/2018.(All non-registered users served via U.S. Mail Service)(mpl)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DAVID EARL PARMER,
16125004

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,

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vs.

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Case No. 3:17-CV-0794-JLS-WVG

SAN DIEGO COUNTY JAIL, et al.,
Defendants.

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I.

Procedural History

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David Earl Parmer (“Plaintiff”), incarcerated at George Bailey Detention Facility

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located in San Diego, California, is proceeding pro se in this civil rights action, filed

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pursuant to 42 U.S.C. § 1983. At the time he filed his Complaint, Plaintiff did not prepay

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the $400 filing fee mandated by 28 U.S.C. § 1914(a); instead, he filed a Motion to proceed

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in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a), (ECF No. 2).

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On May 24, 2017, the Court granted Plaintiff leave to proceed IFP, conducted its

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

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to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), (ECF No. 3). The

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Court also granted Plaintiff 45 days leave in which to file an Amended Complaint that
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3:17-CV-0794-JLS-WVG

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addressed the deficiencies of pleading it identified. (Id.). See also Lopez v. Smith, 203

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

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

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

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On July 10, 2017, Plaintiff filed his First Amended Complaint (“FAC”). (ECF No.

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4.) The Court also dismissed Plaintiff’s FAC sua sponte for failing to state a claim pursuant

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to 28 U.S.C. § 1915(e)(2) and § 1915A(b), (ECF No. 7).

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On November 16, 2017, the Court granted Plaintiff an extension of time and gave

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him until December 16, 2017 to file an Amended Complaint in compliance with the Court’s

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August 30, 2017 Order, (ECF No. 14).

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That time has since passed and Plaintiff has failed to file an Amended Complaint

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despite having been granted an extension of time to do so. “The failure of the plaintiff

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eventually to respond to the court’s ultimatum–either by amending the complaint or by

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indicating to the court that [he] will not do so–is properly met with the sanction of a Rule

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41(b) dismissal.” Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004).

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II.

Conclusion and Order

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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 August 30, 2017 and November 16, 2017

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Orders. (See ECF Nos. 7, 14.)

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3:17-CV-0794-JLS-WVG

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

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

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dismissal and close the file.

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IT IS SO ORDERED.
Dated: January 12, 2018

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3:17-CV-0794-JLS-WVG