Mourning v. Office of the Attorney General et al

Filing 4

ORDER: (1) Dismissing civil action for failing to state a claim and for seeking monetary damages against immune Defendants pursuant to 28 USC 1915; and (2) Dismissing for failing to prosecute with Court Order requiring amendment. Signed by Judge Anthony J. Battaglia on 9/14/2020.(All non-registered users served via U.S. Mail Service)(jpp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 JEFFREY LEE MOURNING, CDCR# BK-7383, Case No. 3:20-cv-00804-AJB-JLB 13 vs. 14 15 16 ORDER: Plaintiff, (1) DISMISSING CIVIL ACTION FOR FAILING TO STATE A CLAIM AND FOR SEEKING MONETARY DAMAGES AGAINST IMMUNE DEFENDANTS PURSUANT TO § 1915A(b); AND OFFICE OF THE ATTORNEY GENERAL; ERIC A. SWENSON; ALLEN BROWN, Defendants. 17 18 (2) DISMISSING FOR FAILING TO PROSECUTE IN COMPLIANCE WITH COURT ORDER REQUIRING AMENDMENT 19 20 21 22 23 24 I. Procedural Background 25 Plaintiff Jefferey Lee Mourning, currently incarcerated at Ironwood State Prison in 26 Blythe, California, is proceeding pro se in this civil action filed on April 27, 2020, pursuant 27 to 42 U.S.C. § 1983. See ECF No. 1 (“Compl.”). Plaintiff did not file a motion to proceed 28 in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) and instead remitted the $400 1 3:20-cv-00804-AJB-JLB 1 filing fee required by 28 U.S.C. § 1914(a) to commence a civil action. See ECF No. 1, 2 Receipt No. CAS120979. 3 On May 14, 2020, the Court dismissed his Complaint for failing to state any claim 4 upon which relief could be granted and for seeking monetary damages against immune 5 defendants pursuant to 28 U.S.C. § 1915A(b). (See ECF No. 2.) Plaintiff was advised of 6 his pleading deficiencies and was granted until June 15, 2020 to file an amended pleading. 7 (Id.) 8 As stated above, Plaintiff’s Amended Complaint was due on or before June 15, 2020. 9 But to date, Plaintiff has not filed an Amended Complaint, and has not requested an 10 extension of time in which to do so. “The failure of the plaintiff eventually to respond to 11 the court’s ultimatum–either by amending the complaint or by indicating to the court that 12 [he] will not do so–is properly met with the sanction of a Rule 41(b) dismissal.” Edwards 13 v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004). 14 II. Conclusion and Order 15 Accordingly, the Court DISMISSES this civil action in its entirety without prejudice 16 based on Plaintiff’s failure to state a claim upon which § 1983 relief can be granted and for 17 seeking monetary damages against immune defendants pursuant to 28 U.S.C. § 1915A(b), 18 and his failure to prosecute pursuant to Fed. R. Civ. P. 41(b) in compliance with the Court’s 19 May 14, 2020 Order. 20 The Court further CERTIFIES that an IFP appeal would not be taken in good faith 21 pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final judgment of 22 dismissal and close the file. 23 IT IS SO ORDERED. 24 25 Dated: September 14, 2020 26 27 28 2 3:20-cv-00804-AJB-JLB

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