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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JEFFREY LEE MOURNING,
CDCR# BK-7383,

Case No. 3:20-cv-00804-AJB-JLB

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vs.

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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.

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(2) DISMISSING FOR FAILING
TO PROSECUTE IN COMPLIANCE
WITH COURT ORDER
REQUIRING AMENDMENT

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I.

Procedural Background

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Plaintiff Jefferey Lee Mourning, currently incarcerated at Ironwood State Prison in

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Blythe, California, is proceeding pro se in this civil action filed on April 27, 2020, pursuant

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to 42 U.S.C. § 1983. See ECF No. 1 (“Compl.”). Plaintiff did not file a motion to proceed

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in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) and instead remitted the $400
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3:20-cv-00804-AJB-JLB

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filing fee required by 28 U.S.C. § 1914(a) to commence a civil action. See ECF No. 1,

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Receipt No. CAS120979.

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On May 14, 2020, the Court dismissed his Complaint for failing to state any claim

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upon which relief could be granted and for seeking monetary damages against immune

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defendants pursuant to 28 U.S.C. § 1915A(b). (See ECF No. 2.) Plaintiff was advised of

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his pleading deficiencies and was granted until June 15, 2020 to file an amended pleading.

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(Id.)

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As stated above, Plaintiff’s Amended Complaint was due on or before June 15, 2020.

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But to date, Plaintiff has not filed an Amended Complaint, and has not requested an

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extension of time in which to do so. “The failure of the plaintiff eventually to respond to

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the court’s ultimatum–either by amending the complaint or by indicating to the court that

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[he] will not do so–is properly met with the sanction of a Rule 41(b) dismissal.” Edwards

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v. Marin Park, 356 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 without prejudice

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

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seeking monetary damages against immune defendants pursuant to 28 U.S.C. § 1915A(b),

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and his failure to prosecute pursuant to Fed. R. Civ. P. 41(b) in compliance with the Court’s

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May 14, 2020 Order.

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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.

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Dated: September 14, 2020

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3:20-cv-00804-AJB-JLB