Rosenthal v. Newsome et al

Filing 5

ORDER DISMISSING Civil Action for Failure to State a Claim and for Failure to Prosecute in Compliance with Court Order. Signed by Judge Michael M. Anello on 11/17/2021. (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 TROY ALLAN ROSENTHAL, 12 13 14 15 16 Case No. 21-cv-1356-MMA (BLM) ORDER DISMISSING CIVIL ACTION FOR FAILURE TO STATE A CLAIM AND FOR FAILURE TO PROSECUTE IN COMPLIANCE WITH COURT ORDER Plaintiff, vs. GAVIN NEWSOME, et al., Defendants. 17 18 On July 23, 2021, Troy Allan Rosenthal (“Plaintiff”), proceeding pro se, was housed 19 at Vista Detention Facility and filed a civil rights complaint pursuant to 42 U.S.C. § 1983 20 in this Court. See Doc. No. 1. Plaintiff did not prepay the civil filing fee required by 28 21 U.S.C. § 1914(a); instead, he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant 22 to 28 U.S.C. § 1915(a). See Doc. No. 2. The Court granted Plaintiff’s Motion to Proceed 23 in Forma Pauperis and dismissed Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915(e)(2) 24 and 28 U.S.C. § 1915A(b)(1). Doc. No. 4. The Court granted Plaintiff forty-five (45) days 25 from the date of the dismissal Order to file a First Amended Complaint. Id. 26 Thus, Plaintiff’s First Amended Complaint was due on or before October 5, 2021. 27 To date, he has failed to amend, and has not requested another extension of time in which 28 to do so. “The failure of the plaintiff eventually to respond to the court’s ultimatum–either 1 21-cv-01356-MMA (BLM) 1 by amending the complaint or by indicating to the court that [he] will not do so–is properly 2 met with the sanction of a Rule 41(b) dismissal.” Edwards v. Marin Park, 356 F.3d 1058, 3 1065 (9th Cir. 2004). 4 Accordingly, the Court DISMISSES this civil action in its entirety based on 5 Plaintiff’s failure to state a claim upon which § 1983 relief can be granted pursuant to 28 6 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1) for the reasons set forth in the Court’s August 7 20, 2021 Order, and his failure to prosecute as required by the Court’s Order. The Court 8 further CERTIFIES that an IFP appeal would not be taken in good faith pursuant to 28 9 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final judgment of dismissal and 10 11 12 close the file. IT IS SO ORDERED. Dated: November 17, 2021 13 _____________________________ 14 HON. MICHAEL M. ANELLO United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 21-cv-01356-MMA (BLM)

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