Mourning v. Office of the Attorney General et al
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)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
JEFFREY LEE MOURNING,
Case No. 3:20-cv-00804-AJB-JLB
(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;
(2) DISMISSING FOR FAILING
TO PROSECUTE IN COMPLIANCE
WITH COURT ORDER
Plaintiff Jefferey Lee Mourning, currently incarcerated at Ironwood State Prison in
Blythe, California, is proceeding pro se in this civil action filed on April 27, 2020, pursuant
to 42 U.S.C. § 1983. See ECF No. 1 (“Compl.”). Plaintiff did not file a motion to proceed
in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) and instead remitted the $400
filing fee required by 28 U.S.C. § 1914(a) to commence a civil action. See ECF No. 1,
Receipt No. CAS120979.
On May 14, 2020, the Court dismissed his Complaint for failing to state any claim
upon which relief could be granted and for seeking monetary damages against immune
defendants pursuant to 28 U.S.C. § 1915A(b). (See ECF No. 2.) Plaintiff was advised of
his pleading deficiencies and was granted until June 15, 2020 to file an amended pleading.
As stated above, Plaintiff’s Amended Complaint was due on or before June 15, 2020.
But to date, Plaintiff has not filed an Amended Complaint, and has not requested an
extension of time in which to do so. “The failure of the plaintiff eventually to respond to
the court’s ultimatum–either by amending the complaint or by indicating to the court that
[he] will not do so–is properly met with the sanction of a Rule 41(b) dismissal.” Edwards
v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004).
Conclusion and Order
Accordingly, the Court DISMISSES this civil action in its entirety without prejudice
based on Plaintiff’s failure to state a claim upon which § 1983 relief can be granted and for
seeking monetary damages against immune defendants pursuant to 28 U.S.C. § 1915A(b),
and his failure to prosecute pursuant to Fed. R. Civ. P. 41(b) in compliance with the Court’s
May 14, 2020 Order.
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.
IT IS SO ORDERED.
Dated: September 14, 2020
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