Rojas v. Johnson et al
ORDER dismissing civil action without prejudice for failing to state a claim pursuant to 28 USC 1915(e) 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 USC 1915(a)(3). Signed by Judge John A. Houston on 12/05/2017.(All non-registered users served via U.S. Mail Service)(jpp)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
CESAR ARMANDO ROJAS,
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
Case No. 3:17-cv-01287-JAH-JMA
RASHAD JOHNSON, Probation Officer,
CESAR ARMANDO ROJAS (“Plaintiff”), while incarcerated at Mule Creek State
Prison in Ione, California, and proceeding pro se, filed this civil rights action pursuant to
42 U.S.C. § 1983 (ECF No. 1).
In his Complaint, Plaintiff claimed a San Diego County probation officer, his
unnamed “transferring partner,” a San Diego County Deputy Sheriff, the University of
California San Diego Emergency Room, and an unidentified emergency medical
technician violated his Eighth Amendment rights on December 22, 2014. (ECF No. 1 at
3-5.) Plaintiff sought to enjoin Defendants from “bothering” him, and requested more
than $19 million in general and punitive damages. (Id. at 7.)
On September 25, 2017, the Court granted Plaintiff leave to proceed in forma
pauperis, but dismissed his Complaint for failing to state a claim upon which relief can be
granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b) (ECF No. 5). Plaintiff was
informed of his various pleading deficiencies, and granted 45 days leave in which to file
an Amended Complaint that fixed them. (Id. at 6-9.) Plaintiff was further cautioned that
his failure to amend would result in the dismissal of his case. (Id. at 9) (citing Lira v.
Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of
the opportunity to fix his complaint, a district court may convert the dismissal of the
complaint into a dismissal of the entire action.”)).
More than two months have passed since the Court’s September 25, 2017 Order,
and Plaintiff’s Amended Complaint was due on or before November 9, 2017. But to date,
Plaintiff has failed to file an Amended Complaint, and has not requested an extension of
time in which to do so. “The failure of the plaintiff eventually to respond to the court’s
ultimatum–either by amending the complaint or by indicating to the court that [he] will
not do so–is properly met with the sanction of a Rule 41(b) dismissal.” Edwards v. Marin
Park, 356 F.3d 1058, 1065 (9th Cir. 2004).
Conclusion and Order
Accordingly, the Court DISMISSES this civil action in its entirety 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) in compliance with the Court’s September 25,
2017 Order (ECF No. 5).
The Court further CERTIFIES that an IFP appeal would not be taken in good
faith pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final
judgment of dismissal and close the file.
IT IS SO ORDERED.
HON. JOHN A. HOUSTON
United States District Judge
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