Diaz v. McGee et al

Filing 7

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 case is dismissed without prejudice. 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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 RONALD C. DIAZ, F-45125 vs. 14 16 17 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 15 Case No. 3:17-cv-1772-LAB-BLM N. McGEE; S. RUTHLEDGE; D. HOLBROOK; J. WILBORN; CALVERT; RICHARD J. DONOVAN CORRECTIONAL FACILITY, Defendants. 18 19 20 21 I. Procedural History Ronald C. Diaz (“Plaintiff”), incarcerated the California State Prison - Los Angeles 22 County located in Lancaster, California, is proceeding pro se in this civil rights action, 23 filed pursuant to 42 U.S.C. § 1983. At the time he filed his Complaint, Plaintiff did not 24 prepay the $400 filing fee mandated by 28 U.S.C. § 1914(a); instead, he filed a Motion to 25 proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). 26 On September 25, 2017, the Court granted Plaintiff leave to proceed IFP, 27 conducted its mandatory initial screening of Plaintiff’s Complaint, and dismissed it sua 28 sponte for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b) 1 3:17-cv-1772-LAB-BLM 1 (ECF No. 3). The Court also granted Plaintiff 45 days leave in which to file an Amended 2 Complaint that addressed the deficiencies of pleading it identified. (Id.). See also Lopez 3 v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc) (“[A] district court should 4 grant leave to amend even if no request to amend the pleading was made, unless it 5 determines that the pleading could not possibly be cured.”) (citations omitted). 6 On October 30, 2017, Plaintiff filed his First Amended Complaint (“FAC”). (ECF 7 No. 4.) The Court also dismissed Plaintiff’s FAC sua sponte for failing to state a claim 8 pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b) (ECF No. 5). Plaintiff again given 45 9 days leave in which to file an Amended Complaint to address the deficiencies of pleading 10 identified in the Court’s Order. (Id.) 11 That time has since passed and Plaintiff has failed to file an Amended Complaint. 12 “The failure of the plaintiff eventually to respond to the court’s ultimatum–either by 13 amending the complaint or by indicating to the court that [he] will not do so–is properly 14 met with the sanction of a Rule 41(b) dismissal.” Edwards v. Marin Park, 356 F.3d 1058, 15 1065 (9th Cir. 2004). 16 II. 17 Conclusion and Order Accordingly, the Court DISMISSES this civil action in its entirety without 18 prejudice based on Plaintiff’s failure to state a claim upon which § 1983 relief can be 19 granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and his failure to 20 prosecute pursuant to FED. R. CIV. P. 41(b) in compliance with the Court’s November 13, 21 2017 Order. 22 23 24 25 The Clerk of Court is directed to enter a final judgment of dismissal and close the file. IT IS SO ORDERED. Dated: January 12, 2018 26 ____________________________________ 27 HON. LARRY ALAN BURNS United States District Judge 28 2 3:17-cv-1772-LAB-BLM

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