Joshua Charles Acosta v. Y. Servin et al

Filing 12

ORDER Dismissing Civil Action Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1) and for Failing to Prosecute in Compliance with Court Order Requiring Amendment. Signed by Judge Michael M. Anello on 6/7/2021. (All non-registered users served via U.S. Mail Service) (tcf)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 JOSHUA CHARLES ACOSTA, CDCR # BI-1477, Case No. 20cv2225-MMA-MSB ORDER DISMISSING CIVIL ACTION PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii) AND § 1915A(b)(1) AND FOR FAILING TO PROSECUTE IN COMPLIANCE WITH COURT ORDER REQUIRING AMENDMENT Plaintiff, vs. Y. SERVIN, Psychologist, Calipatria State Prison; DOE 1, Psychologist, Wasco State Prison; DOE 2, Chief Medical Officer, Wasco State Prison; DOE 3, Chief Health Officer, Calipatria State Prison, Defendants. 19 20 Plaintiff Joshua Charles Acosta, while incarcerated at Calipatria State Prison 21 (“CAL”) in Imperial, California, and proceeding pro se, filed this civil rights action 22 pursuant to 42 U.S.C. § 1983 (“Compl.”) in the Central District of California on October 23 28, 2020. See “Compl.,” Doc. No. 1 at 1. Plaintiff claimed CAL Psychologist Y. Servin, 24 CAL’s Chief Mental Health Officer, and an unidentified psychologist and Chief Medical 25 Officer at Wasco State Prison (“WSP”), violated his rights under the Americans with 26 Disabilities Act, his “protections under the Armstrong, Coleman, and Clark remedial 27 plans,” and the Eighth Amendment by “hous[ing] [him] within the mainline population” 28 at both CAL and WSP despite his autism. Id. at 3‒6. 1 3:20-cv-02225-MMA-MSB 1 Plaintiff sought $250,000 in compensatory damages, an injunction requiring 2 Defendants “to identify, assess, and treat people with autism spectrum disorder,” and 3 Defendants’ “termination of employment.” Id. at 7. 4 I. Procedural History 5 Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) at the 6 time he filed his Complaint, but instead submitted an Application to Proceed In Forma 7 Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (Doc. No. 2), as well as an ex parte 8 Motion for Assignment of Counsel. See Doc. No. 3. On November 13, 2020, however, 9 the Honorable Cormac J. Carney determined venue did not lie in the Central District of 10 California, and transferred the action here in the interest of justice pursuant to 28 U.S.C. 11 § 1406(a). See Doc. No. 5. 12 On February 24, 2021, this Court granted Plaintiff’s Motion to Proceed IFP, but 13 denied his Motion for Assignment of Counsel and dismissed his Complaint for failing to 14 state claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Doc. No. 8. 15 Plaintiff was notified of his pleading deficiencies, and granted 60 days leave in which to 16 file an Amended Complaint that fixed them. Id. at 9‒18. Plaintiff was also warned his 17 failure to amend would result in the dismissal of his case. Id. at 18 (citing Lira v. 18 Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of 19 the opportunity to fix his complaint, a district court may convert the dismissal of the 20 complaint into a dismissal of the entire action.”)). 21 Plaintiff’s Amended Complaint was due on or before April 24, 2021. More than a 22 month has elapsed since that time, but to date, Plaintiff has failed to amend, and has not 23 requested an extension of time in which to do so.1 “The failure of the plaintiff eventually 24 25 26 27 28 1 In fact, the Court’s February 24, 2021 Order (Doc. No. 8) was returned undeliverable by the U.S. Post Office on March 16, 2021. See Doc. No. 11. Because Plaintiff filed a Notice of Change of Address indicating his transfer to Mule Creek State Prison (“MCSP”) in the interim on March 3, 2021, however, see Doc. No. 9, the Clerk of the Court mailed a separate copy of the Court’s February 24, 2021 Order to Plaintiff at MCSP on March 4, 2021. See Doc. No. 9 (“NOTICE of Change of Address by Joshua Charles Acosta (jms) Order 8 mailed to new address (jms). (Entered: 03/04/2021)”). The Court has 2 3:20-cv-02225-MMA-MSB 1 to respond to the court’s ultimatum–either by amending the complaint or by indicating to 2 the court that [he] will not do so–is properly met with the sanction of a Rule 41(b) 3 dismissal.” Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004). 4 II. Conclusion and Order 5 Accordingly, the Court DISMISSES this civil action in its entirety based on 6 Plaintiff’s failure to state a claim upon which § 1983 relief can be granted pursuant to 28 7 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1), and his failure to prosecute as required by 8 Court’s February 24, 2021 Order requiring amendment. 9 The Court further CERTIFIES that an IFP appeal would not be taken in good 10 faith pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final 11 judgment of dismissal and close the file. 12 13 14 15 IT IS SO ORDERED. DATE: June 7, 2021 ______________________________________ HON. MICHAEL M. ANELLO United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 confirmed that Plaintiff remains incarcerated at MCSP, and notes the March 4, 2021 mailing was not returned by the Post Office as undelivered. See Details .aspx?ID= BI1477 (last visited June 7, 2021); see also United States v. Basher, 629 F.3d 1161, 1165 (9th Cir. 2011) (taking judicial notice of prisoner’s address using Bureau of Prisons’ inmate locator); 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). 3 3:20-cv-02225-MMA-MSB

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