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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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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TROY ALLAN ROSENTHAL,

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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.

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On July 23, 2021, Troy Allan Rosenthal (“Plaintiff”), proceeding pro se, was housed

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at Vista Detention Facility and filed a civil rights complaint pursuant to 42 U.S.C. § 1983

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in this Court. See Doc. No. 1. Plaintiff did not prepay the civil filing fee required by 28

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U.S.C. § 1914(a); instead, he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant

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to 28 U.S.C. § 1915(a). See Doc. No. 2. The Court granted Plaintiff’s Motion to Proceed

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in Forma Pauperis and dismissed Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915(e)(2)

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and 28 U.S.C. § 1915A(b)(1). Doc. No. 4. The Court granted Plaintiff forty-five (45) days

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from the date of the dismissal Order to file a First Amended Complaint. Id.

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Thus, Plaintiff’s First Amended Complaint was due on or before October 5, 2021.

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To date, he has failed to amend, and has not requested another extension of time in which

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to do so. “The failure of the plaintiff eventually to respond to the court’s ultimatum–either
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21-cv-01356-MMA (BLM)

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by amending the complaint or by indicating to the court that [he] will not do so–is properly

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met with the sanction of a Rule 41(b) dismissal.” Edwards v. Marin Park, 356 F.3d 1058,

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1065 (9th Cir. 2004).

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Accordingly, the Court DISMISSES this civil action in its entirety based on

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Plaintiff’s failure to state a claim upon which § 1983 relief can be granted pursuant to 28

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U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1) for the reasons set forth in the Court’s August

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20, 2021 Order, and his failure to prosecute as required by the Court’s Order. The Court

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further CERTIFIES that an IFP appeal would not be taken in good faith pursuant to 28

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U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final judgment of dismissal and

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close the file.
IT IS SO ORDERED.
Dated: November 17, 2021

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_____________________________

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HON. MICHAEL M. ANELLO
United States District Judge

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21-cv-01356-MMA (BLM)