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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RONALD C. DIAZ,
F-45125
vs.

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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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Case No. 3:17-cv-1772-LAB-BLM

N. McGEE; S. RUTHLEDGE; D.
HOLBROOK; J. WILBORN;
CALVERT; RICHARD J. DONOVAN
CORRECTIONAL FACILITY,
Defendants.

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I.

Procedural History
Ronald C. Diaz (“Plaintiff”), incarcerated the California State Prison - Los Angeles

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County located in Lancaster, California, is proceeding pro se in this civil rights action,

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

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

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

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On September 25, 2017, the Court granted Plaintiff leave to proceed IFP,

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conducted its mandatory initial screening of Plaintiff’s Complaint, and dismissed it sua

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sponte for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b)
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3:17-cv-1772-LAB-BLM

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(ECF No. 3). The Court also granted Plaintiff 45 days leave in which to file an Amended

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Complaint that addressed the deficiencies of pleading it identified. (Id.). See also Lopez

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

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grant leave to amend even if no request to amend the pleading was made, unless it

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

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On October 30, 2017, Plaintiff filed his First Amended Complaint (“FAC”). (ECF

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No. 4.) The Court also dismissed Plaintiff’s FAC sua sponte for failing to state a claim

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pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b) (ECF No. 5). Plaintiff again given 45

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days leave in which to file an Amended Complaint to address the deficiencies of pleading

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identified in the Court’s Order. (Id.)

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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 13,

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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.
Dated: January 12, 2018

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____________________________________

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HON. LARRY ALAN BURNS
United States District Judge

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3:17-cv-1772-LAB-BLM