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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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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,

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vs.

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Case No. 3:17-CV-2094-JLS-NLS

CHINO PRISON CIM; GEORGE
BAILEY DETENTION FACILITY,

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Defendants.

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I.

Procedural History

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Patrick Henry Rivera, Jr. (“Plaintiff”), 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 November 9, 2017, the Court granted Plaintiff leave to proceed IFP, conducted

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

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failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), (ECF No. 3).

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The Court also granted Plaintiff 45 days leave in which to file an Amended Complaint that
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3:17-CV-2094-JLS-NLS

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addressed the deficiencies of pleading it identified. (Id.) See also Lopez v. Smith, 203 F.3d

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1122, 1130–31 (9th Cir. 2000) (en banc) (“[A] district court should grant leave to amend

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even if no request to amend the pleading was made, unless it determines that the pleading

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could not possibly 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.

Conclusion and Order

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Accordingly, the Court DISMISSES this civil action in its entirety without 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 November 19, 2017 Order. The Clerk of

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Court is directed to enter a final judgment of dismissal and close the file.

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IT IS SO ORDERED.
Dated: January 12, 2018

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