Young v. Escondido Police Department et al

Filing 12

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. The Court further certifies that an IFP appeal would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3) and directs the Clerk to enter a final judgment of dismissal and close the file. Signed by Judge William Q. Hayes on 12/10/2018.(All non-registered users served via U.S. Mail Service)(ajs)

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DEC 1 0 2018

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Plaintiff,

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vs.

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Case No. 3:18-cv-00497-WQH-WVG

TRAVIS J. YOUNG,
CDCR #BF-0681,

ESCONDIDO POLICE DEPARTMENT,
et al.,

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Defendants.

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

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Travis J. Young ("Plaintiff'), while incarcerated at Wasco State Prison and

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proceeding prose, filed this civil rights Complaint pursuant to 42 U.S.C. § 1983, on

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March 7, 2018, seeking to sue the Escondido Police Department, the Vista Superior

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Court, the San Diego County District Attorney's Office in Vista, the Superior Court, the

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County Probation Department, the Public Defender, as well as San Diego Gas & Electric,

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and two private citizens for discriminating against him and violating his rights to equal

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protection in the course of several San Diego County criminal proceedings. See Comp!.,

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ECFNo.1at1-4, 10-17. 1

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1 Plaintiff later

filed a Notice of Change of Address indicating his release from custody. See ECF No. 10.
3: 18-cv-00497-WQH-WVG

1 I.

Procedural History

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On October 4, 2018, the Court granted Plaintiffs renewed Motion seeking leave to

3 proceed in forma pauperis ("IFP"), but dismissed his Complaint for failing to state claim
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and for seeking damages from defendants who are immune pursuant to 28 U.S.C.

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§ 1915(e)(2) and§ 1915A(b). See ECF No. 11. Plaintiff was notified of his pleading

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deficiencies, and granted 45 days leave to file an Amended Complaint that fixed them, if

7 he could. Id. at 6-9. Plaintiff was also warned that his failure to amend would result in the
8 dismissal of his case. Id. at 9-10 (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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Plaintiffs Amended Complaint was due on or before November 19, 2018, and two

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full months have passed since the Court issued its October 4, 2018 Order. But to date,

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

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time in which to do so. 2 "The failure of the plaintiff eventually to respond to the court's

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ultimatum-either by amending the complaint or by indicating to the court that [he] will

17 not do so-is properly met with the sanction of a Rule 41 (b) dismissal." Edwards v. Marin
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Park, 356 F.3d 1058, 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 because Plaintiff has failed to state a claim upon which § 1983 relief can be

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granted and because he seeks damages from defendants who are immune. See 28 U.S.C.

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The Court presumes its October 4, 2018 Order was received by Plaintiff at the location indicated on his
August 31, 2018 Notice of Change of Address since that Order has not been returned to the Clerk by the
U.S. Post Office as undeliverable. See S.D. Cal. CivLR 83.11.b; In re Bucknum, 951 F.2d 204, 207 (9th
Cir. 1991) ("Mail that is properly addressed, stamped and deposited into the mails is presumed to be
received by the addressee."); Franco v. Sessions, 740 F. App'x 869, 872 (9th Cir. 2018) (discussing the
delivery of regular and certified mail and the "presum[ption] that postal officers properly discharge their
duties.") (citing Salta v. INS, 314 F.3d 1076, 1079 (9th Cir. 2002).
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3:18-cv-00497-WQH-WVG

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§ 1915(e)(2)(B) and§ 1915A(b). In addition, the Court DISMISSES the case based on

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Plaintiff's failure to prosecute pursuant to Fed. R. Civ. P. 41(b) as required by Court's

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October 4, 2018 Order requiring amendment. See ECF No. 11.

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

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

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judgment of dismissal and close the file.

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IT IS SO ORDERED.

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Dated:
Hon. William Q. Ha
United States Distri t Judge

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