Rivera, Jr. v. Chino Prison CIM et al

Filing 5

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 Court dismisses this civil action in its entir ety 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 November 19, 2017 Order. Signed by Judge Janis L. Sammartino on 1/12/2018.(All non-registered users served via U.S. Mail Service)(mpl)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 PATRICK HENRY RIVERA, JR., 17155995 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 vs. 14 15 Case No. 3:17-CV-2094-JLS-NLS CHINO PRISON CIM; GEORGE BAILEY DETENTION FACILITY, 16 Defendants. 17 18 19 20 I. Procedural History 21 Patrick Henry Rivera, Jr. (“Plaintiff”), is proceeding pro se in this civil rights action, 22 filed pursuant to 42 U.S.C. § 1983. At the time he filed his Complaint, Plaintiff did not 23 prepay the $400 filing fee mandated by 28 U.S.C. § 1914(a); instead, he filed a Motion to 24 proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a), (ECF No. 2). 25 On November 9, 2017, the Court granted Plaintiff leave to proceed IFP, conducted 26 its mandatory initial screening of Plaintiff’s Complaint, and dismissed it sua sponte for 27 failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), (ECF No. 3). 28 The Court also granted Plaintiff 45 days leave in which to file an Amended Complaint that 1 3:17-CV-2094-JLS-NLS 1 addressed the deficiencies of pleading it identified. (Id.) See also Lopez v. Smith, 203 F.3d 2 1122, 1130–31 (9th Cir. 2000) (en banc) (“[A] district court should grant leave to amend 3 even if no request to amend the pleading was made, unless it determines that the pleading 4 could not possibly be cured.” (citations omitted)). 5 That time has since passed and Plaintiff has failed to file an Amended Complaint. 6 “The failure of the plaintiff eventually to respond to the court’s ultimatum–either by 7 amending the complaint or by indicating to the court that [he] will not do so–is properly 8 met with the sanction of a Rule 41(b) dismissal.” Edwards v. Marin Park, 356 F.3d 1058, 9 1065 (9th Cir. 2004). 10 II. Conclusion and Order 11 Accordingly, the Court DISMISSES this civil action in its entirety without prejudice 12 based on Plaintiff’s failure to state a claim upon which § 1983 relief can be granted pursuant 13 to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and his failure to prosecute pursuant to Fed. 14 R. Civ. P. 41(b) in compliance with the Court’s November 19, 2017 Order. The Clerk of 15 Court is directed to enter a final judgment of dismissal and close the file. 16 17 IT IS SO ORDERED. Dated: January 12, 2018 18 19 20 21 22 23 24 25 26 27 28 2 3:17-CV-2094-JLS-NLS

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