Menchaca, Jr. v. San Diego Sheriff's Department

Filing 6

ORDER dismissing civil action pursuant to 28 USC 1915(e)(2) and 1915A(b) and for failing to prosecute in compliance with Court Order requiring amendment. Signed by Judge John A. Houston on 4/30/2018.(All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ANTONIO MORA MENCHACA, Jr.,
Booking #16105447,
vs.

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ORDER DISMISSING CIVIL
ACTION 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-02059-JAH-JMA

SAN DIEGO SHERIFF’S
DEPARTMENT,

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Defendant.

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ANTONIO MORA MENCHACA, Jr. (“Plaintiff”), while in custody of the San

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Diego Sheriff Department’s Vista Detention Facility, and proceeding pro se, filed this civil

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rights action pursuant to 42 U.S.C. § 1983 on October 5, 2017. See Compl., ECF No. 1.

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In his Complaint, Plaintiff claimed the San Diego Sheriff’s Department violated his

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right to be free from cruel and unusual punishment sometime between February and April

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2016, when he alleged to have been assaulted by six unidentified Sheriff’s Department

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officers who were responding to a fight between other inmates. Id. at 2-3.

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I.

Procedural History

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On February 13, 2018, the Court granted Plaintiff leave to proceed in forma pauperis,

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but dismissed his Complaint for failing to state any claim pursuant to 28 U.S.C.
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3:17-cv-02059-JAH-JMA

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§ 1915(e)(2)(B) and § 1915A(b). See ECF No. 5. Plaintiff was informed of his various

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pleading deficiencies, and granted 45 days leave in which to file an Amended Complaint

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that fixed them. Id. at 5-9. Plaintiff was further cautioned his failure to amend would result

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in the dismissal of his case. Id. at 9, citing Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir.

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2005) (“If a plaintiff does not take advantage of the opportunity to fix his complaint, a

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district court may convert the dismissal of the complaint into a dismissal of the entire

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action.”)).

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More than two months have passed since the Court’s February 13, 2018 Order, and

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Plaintiff’s Amended Complaint was due on or before March 30, 2018. But to date, Plaintiff

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has failed to file an Amended Complaint, and has not requested an extension of time in

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which to do so. “The failure of the plaintiff eventually to respond to the court’s ultimatum–

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either by amending the complaint or by indicating to the court that [he] will not do so–is

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properly met with the sanction of a Rule 41(b) dismissal.” Edwards v. Marin Park, 356

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F.3d 1058, 1065 (9th Cir. 2004).

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II.

Conclusion and Order

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Accordingly, the Court DISMISSES this civil action in its entirety with prejudice

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based on Plaintiff’s failure to state a claim upon which § 1983 relief can be granted pursuant

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to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and his failure to prosecute pursuant to FED.

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R. CIV. P. 41(b) in compliance with the Court’s February 13, 2018 Order (ECF No. 5).

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The Court further CERTIFIES that an IFP appeal would not be taken in good faith

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pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final judgment of

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dismissal and close the file.

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IT IS SO ORDERED.
Dated: April 30, 2018

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_____________________________

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Hon. John A. Houston
United States District Judge

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3:17-cv-02059-JAH-JMA