(PC) Franks v. Roberts et al

Filing 12

ORDER DISMISSING CIVIL ACTION for Failure to Prosecute. Signed by Judge John A. Houston on 6/3/2024.(All non-registered users served via U.S. Mail Service)(bdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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TOM M. FRANKS,
CDCR # AV-3360,

Case No.: 3:23-cv-2130-JAH-DDL
Plaintiff,
vs.

ORDER DISMISSING CIVIL
ACTION FOR FAILURE TO
PROSECUTE

S. ROBERTS, SHAKIBA, MAJAMAD,
Defendants.

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I.

INTRODUCTION

On November 9, 2023, Tom M. Franks (“Plaintiff” or “Franks”), a state inmate

21 proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983, along with a
22 motion to proceed in forma pauperis (“IFP”). ECF Nos. 1, 2. On December 20, 2023, the
23 Court granted Plaintiff’s IFP application but dismissed the complaint without prejudice for
24 failure to state a claim. ECF No. 7. The Court gave Plaintiff 45 days to file an amended
25 complaint and advised him that failure to do so would result in the Court entering a final
26 order of dismissal. Id. at 8. The Court subsequently granted Plaintiff two extensions of time
27 to file his amended complaint, the latter of which required Plaintiff to file it no later than
28 April 22, 2024. See ECF No. 11.
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23-cv-2130-JAH-DDL

II.

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DISCUSSION

The time for Plaintiff to respond to the Court’s Order has passed and the Court has

3 received no further communication from Plaintiff. The failure of the plaintiff eventually to
4 respond to the court’s ultimatum–either by amending the complaint or by indicating to the
5 court that [he] will not do so–is properly met with the sanction of a Rule 41(b) dismissal.”
6 Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004); Henderson v. Duncan, 779
7 F.2d 1421, 1423 (9th Cir. 1986) (the Court has discretion to sua sponte dismiss a case for
8 lack of prosecution or failure to comply with a court order); see also Fed. R. Civ. P. 41(b)
9 (providing for involuntary dismissal for failure to prosecute or comply with the federal
10 rules or court order).
III.

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CONCLUSION AND ORDER

The Court DISMISSES this civil action in its entirety based on Plaintiff’s failure to

13 state a plausible § 1983 claim and his failure to prosecute this action. The Court DIRECTS
14 the Clerk to enter a final judgment of dismissal and close the file.
15 IT IS SO ORDERED.
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17 Dated: June 3, 2024
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JOHN A. HOUSTON
UNITED STATES DISTRICT JUDGE

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