Cruz v. San Diego County CWS et al
Order Dismissing Civil Action for Failing to State a Claim and for Failing to Prosecute in Compliance with Court Order Requiring Amendment. Signed by Judge Gonzalo P. Curiel on 11/15/23.(All non-registered users served via U.S. Mail Service)(jmo)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Case No.: 3:23-CV-0957-GPC-KSC
San Diego County CWS, Lynette Miller,
ORDER DISMISSING CIVIL
ACTION FOR FAILING TO STATE
A CLAIM AND FOR FAILING TO
PROSECUTE IN COMPLIANCE
WITH COURT ORDER REQUIRING
Plaintiff Leila Cruz (“Plaintiff” or “Cruz”), proceeding pro se, filed a complaint
against Defendants San Diego County CWS, Lynette Miller, and Christopher Hines in the
United States District Court for the Eastern District of Missouri on May 4, 2023. (ECF
No. 1, Compl.) On May 24, 2023, the District Court in the Eastern District of Missouri
transferred the action to this Court to cure the defect in venue. (ECF No. 3 at 7–8.1) Cruz
also filed a motion to proceed in forma pauperis (“IFP”), (ECF No. 2), which was
Page numbers are based on the CM/ECF pagination.
provisionally granted by the Eastern District of Missouri and subject to modification by
this Court. (ECF No. 3 at 8.) On August 24, 2023, the Court granted Plaintiff’s motion to
proceed in forma pauperis, sua sponte dismissed the complaint for failing to state a claim
with leave to amend, denied her motion to appoint counsel; and denied her “motion to add
claims for relief.” (ECF No. 10.) The Court granted Plaintiff leave to file an amended
complaint to correct the deficiencies identified in the Court’s order no later than September
30, 2023. (Id.) Over one month has passed since the Court’s dismissal order, and to date,
Plaintiff has not filed an amended complaint, nor sought an extension of time to file one.2
Accordingly, the Court DISMISSES this civil action in its entirety without further leave to
amend based on Plaintiff’s failure to state a claim upon which relief can be granted and her
failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Edwards v.
Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004) (“The failure of the plaintiff eventually
to respond to the court’s ultimatum—either by amending the complaint or indicating to the
court that [she] will not do so—is properly met with the sanction of a Rule 41(b)
dismissal.”); Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not
take advantage of the opportunity to fix his complaint, a district court may convert the
dismissal of the complaint into dismissal of the entire action.”). The Court DIRECTS the
Clerk of Court to enter final judgment of dismissal and to close the file.
IT IS SO ORDERED.
Dated: November 15, 2023
The Court notes that its order was returned as undeliverable on September 11, 2023. (ECF. No. 11.) A
pro se litigant must keep the court advised as to her current address within 60 days or else the Court may
dismiss the action for failure to prosecute. See S.D. Civ. Local R. 83.11. Here, Plaintiff has failed to
inform the Court of her current address and is another basis for dismissal.
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