Johnson v. Doe et al

Filing 20

ORDER DISMISSING CASE. The Court dismisses this action in its entirety without prejudice based on Plaintiff's failure to state a claim and his failure to prosecute in compliance with the Court's 11/28/2017 Order. Signed by Judge Larry Alan Burns on 1/12/2018.(All non-registered users served via U.S. Mail Service)(jdt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SEDRIC EUGENE JOHNSON,
AZ-2648

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-0889-LAB-JLB

JOHN DOE, et al.,
Defendants.

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I.

Procedural History

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Sedric Eugene Johnson (“Plaintiff”), is proceeding pro se in this civil action, filed

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a civil rights Complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.) At the time he filed

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his Complaint, Plaintiff did not prepay the $400 filing fee mandated by 28 U.S.C.

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§ 1914(a); instead, he filed a Motion to proceed in forma pauperis (“IFP”) pursuant to 28

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U.S.C. § 1915(a) (ECF No. 2).

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On September 12, 2017, the Court granted Plaintiff leave to proceed IFP, denied

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his request for counsel, and conducted its mandatory initial screening of Plaintiff’s

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Complaint. (ECF No. 14 at 7-8.) The Court dismissed Plaintiff’s Complaint sua sponte
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3:17-cv-0889-LAB-JLB

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for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b) (Id.). The

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Court granted Plaintiff forty five (45) days leave in which to file an Amended Complaint

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

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

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

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

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On October 5, 2017, Plaintiff filed his First Amended Complaint (“FAC”). (ECF

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No. 18.) Once again, the Court found that Plaintiff’s FAC failed to state a claim upon

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which relief could be granted and dismissed the entire action with thirty (30) days leave

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to file an amended pleading. (ECF No. 19 at 6-7.)

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

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

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

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

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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 November 28,

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2017 Order.

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The Clerk of Court is directed to enter a final judgment of dismissal and close the
file.
IT IS SO ORDERED.

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Dated: January 12, 2018

______________________________________
HON. LARRY ALAN BURNS
United States District Judge
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3:17-cv-0889-LAB-JLB