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)

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 https://inmatelocator.cdcr.ca.gov/ 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