Rojas v. Johnson et al

Filing 6

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)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 10 CESAR ARMANDO ROJAS, CDCR #BA-4157, 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, 11 vs. 12 13 Case No. 3:17-cv-01287-JAH-JMA RASHAD JOHNSON, Probation Officer, et al., 14 Defendants. 15 16 17 CESAR ARMANDO ROJAS (“Plaintiff”), while incarcerated at Mule Creek State 18 Prison in Ione, California, and proceeding pro se, filed this civil rights action pursuant to 19 42 U.S.C. § 1983 (ECF No. 1). 20 In his Complaint, Plaintiff claimed a San Diego County probation officer, his 21 unnamed “transferring partner,” a San Diego County Deputy Sheriff, the University of 22 California San Diego Emergency Room, and an unidentified emergency medical 23 technician violated his Eighth Amendment rights on December 22, 2014. (ECF No. 1 at 24 3-5.) Plaintiff sought to enjoin Defendants from “bothering” him, and requested more 25 than $19 million in general and punitive damages. (Id. at 7.) 26 I. Procedural History 27 On September 25, 2017, the Court granted Plaintiff leave to proceed in forma 28 pauperis, but dismissed his Complaint for failing to state a claim upon which relief can be 1 3:17-cv-01287-JAH-JMA 1 granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b) (ECF No. 5). Plaintiff was 2 informed of his various pleading deficiencies, and granted 45 days leave in which to file 3 an Amended Complaint that fixed them. (Id. at 6-9.) Plaintiff was further cautioned that 4 his failure to amend would result in the dismissal of his case. (Id. at 9) (citing Lira v. 5 Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of 6 the opportunity to fix his complaint, a district court may convert the dismissal of the 7 complaint into a dismissal of the entire action.”)). 8 More than two months have passed since the Court’s September 25, 2017 Order, 9 and Plaintiff’s Amended Complaint was due on or before November 9, 2017. But to date, 10 Plaintiff has failed to file an Amended Complaint, and has not requested an extension of 11 time in which to do so. “The failure of the plaintiff eventually to respond to the court’s 12 ultimatum–either by amending the complaint or by indicating to the court that [he] will 13 not do so–is properly met with the sanction of a Rule 41(b) dismissal.” Edwards v. Marin 14 Park, 356 F.3d 1058, 1065 (9th Cir. 2004). 15 II. 16 Conclusion and Order Accordingly, the Court DISMISSES this civil action in its entirety without 17 prejudice based on Plaintiff’s failure to state a claim upon which § 1983 relief can be 18 granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and his failure to 19 prosecute pursuant to FED. R. CIV. P. 41(b) in compliance with the Court’s September 25, 20 2017 Order (ECF No. 5). 21 The Court further CERTIFIES that an IFP appeal would not be taken in good 22 faith pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final 23 judgment of dismissal and close the file. 24 IT IS SO ORDERED. 25 26 27 28 Dated: 12/5/2017 ______________________________________ HON. JOHN A. HOUSTON United States District Judge 2 3:17-cv-01287-JAH-JMA

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