Bernard v. City of San Diego

Opinion

AMA B. BERNARD, Case No. 21-cv-967-MMA (AGS) Booking #21104941, ORDER DISMISSING CIVIL Plaintiff, vs. TO 28 U.S.C. § 1915(e)(2)(B)(ii) AND § 1915A(b)(1) AND FOR FAILURE CITY OF SAN DIEGO, Bd. of TO PROSECUTE IN COMPLIANCE Supervisors; WILLIAM GORE, San WITH COURT ORDER Diego County Sheriff’s Dept.; SHERIFF REQUIRING AMENDMENT DEPUTY MORA; JAMES TEH, North County Prosecutor, Defendants.

On May 19, 2021, Plaintiff Ama B. Bernard (“Plaintiff”), while detained at the San Diego Central Jail (“SDCJ”), and proceeding pro se, filed this civil rights Complaint pursuant to 42 U.S.C. § 1983. See Doc. No. 1 (“Compl.”). Plaintiff sought the dismissal of San Diego Criminal Case No. CN404627 and monetary damages against the City of San Diego, the San Diego County Sheriff, a Sheriff’s Department Deputy, and a San Diego County Deputy District Attorney based on claims that they selectively prosecuted, falsely imprisoned, and subjected him to unsafe conditions and excessive force at the SDCJ. See id. at 2‒5. Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) at the time he filed his Complaint, but instead filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See Doc. No. 2. On July 29, 2021, the Court granted Plaintiff’s Motion to Proceed IFP, but dismissed his Complaint for failure to state claim and as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Doc. No. 6. The Court notified Plaintiff of his pleading deficiencies and granted him 45 days to file an Amended Complaint that fixed them. See id. at 5‒12. Plaintiff was also warned his failure to amend would result in the dismissal of his case. See id. at 13 (citing 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 a dismissal of the entire action.”)). Plaintiff’s Amended Complaint was due on or before September 13, 2021. More than two weeks have elapsed since that time, but to date, Plaintiff has failed to amend, and has not requested an extension of time in which to do so.1 “The failure of the plaintiff eventually to respond to the court’s ultimatum–either by amending the 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). Accordingly, the Court DISMISSES this civil action in its entirety based on Plaintiff’s failure to state a claim upon which § 1983 relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1), and his failure to prosecute as required by Court’s July 29, 2021 Order requiring amendment.

1 In fact, the Court’s July 29, 2021 Order, see Doc. No. 6, was returned to the Clerk of Court as undeliverable by the U.S. Post Office on August 12, 2021, with a notation that Plaintiff was “out of custody.” See Doc. No. 7 at 1. “A party proceeding pro se must keep the court and opposing parties 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: September 30, 2021 BWMiihuh lM Lille HON. MICHAEL M. ANELLO g United States District Judge 3 nA NSCPINANTA □□□