Alvarado v. County of San Diego

Opinion

CESAR ALVARDO Case No.: 3:23-CV-0426-DMS-MDD Inmate No. 18123467, ORDER DISMISSING CIVIL Plaintiff, v. TO PROSECUTE IN COMPLIANCE WITH COURT ORDER COUNTY OF SAN DIEGO; SHERIFF MARTINAS; CHIEF MEDICAL OFFICER MONTGOMERY; SONIA MANNING, FACILITY COMMANDER, Defendants.

I. Introduction On March 7, 2023, Cesar Alvarado (“Plaintiff” or “Alvarado”), who is proceeding pro se, was housed at the Vista Detention Facility (“VDF”) and filed a civil rights complaint (“Compl.”) pursuant to 42 U.S.C. § 1983 in this Court. See ECF No. 1. Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a); instead, he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See ECF No. 2. On March 28, 2023, the Court granted Plaintiff’s Motion to Proceed in Forma Pauperis and dismissed Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A(b)(1). See ECF No. 7. Plaintiff was granted thirty (30) days from the date of the dismissal Order to file a First Amended Complaint. Id. at 12. Discussion Plaintiff's First Amended Complaint was due on or before April 28, 2023. To date, he has failed to amend, and has not requested an extension of time in which to do so. “The failure of the plaintiff eventually to respond to the court’s ultimatum—either by amending complaint or by indicating to the court that [he] will not do so—is properly met with the sanction of a Rule 41(b) dismissal.” Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004). Conclusion and Order Accordingly, the Court DISMISSES this civil action in its entirety based on Plaintiffs failure to state a claim upon which § 1983 relief can be granted pursuant to 28 /U.S.C. § 1915(e)(2)(B)Gi) and § 1915A(b)(1), and his failure to prosecute as required by Court’s March 28, 2023 Order. The Court further CERTIFIES that an IFP appeal would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final judgment of dismissal and close the file. Dated: July 17, 2023 » 4 Yn: Hon. Dana M. Sabraw, Chief Judge United States District Court 2