Roddy v. Office of the District Attorney et al

Filing 8

ORDER DISMISSING CASE. 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 11/28/2017 Order. The Clerk of Court is directed to enter a final judgment of dismissal and close the file. Signed by Judge Larry Alan Burns on 2/20/2018.(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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RICHARD PAUL RODDY II,
Inmate Booking No. 13717172
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-1964-LAB-PCL

OFFICE OF THE DISTRICT
ATTORNEY; COURT OF APPEAL,
FOURTH DISTRICT; APPELLATE
DEFENDERS, INC.; ROBERT F.
O'NEIL,

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Defendants.

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I.

Procedural History
Richard Paul Roddy, II, (“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.) 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. 4).

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On November 28, 2017, the Court granted Plaintiff leave to proceed IFP and

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conducted its mandatory initial screening of Plaintiff’s Complaint. (ECF No. 5 at 7-8.)

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The Court dismissed Plaintiff’s Complaint sua sponte for failing to state a claim pursuant

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to 28 U.S.C. § 1915(e)(2) and § 1915A(b) (Id.). The Court granted Plaintiff thirty (30)
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3:17-cv-1964-LAB-PCL

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days leave in which to file an Amended Complaint that addressed the deficiencies of

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pleading it identified. (Id.). See also Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.

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2000) (en banc) (“[A] district court should grant leave to amend even if no request to

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amend the pleading was made, unless it determines that the pleading could not possibly

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be cured.”) (citations omitted).

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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: February 20, 2018

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_________________________________

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HON. LARRY ALAN BURNS
United States District Judge

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3:17-cv-1964-LAB-PCL