Buckelew v. Lovelace

Opinion

DION SCOTT BUCKELEW, Case No.: 23-cv-83-MMA-JLB CDCR #BS-1324, ORDER DISMISSING ACTION Plaintiff, vs. CAPTAIN DARNELL, et al., Defendants. On January 13, 2023, Plaintiff Dion Scott Buckelew, a state prisoner proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983, along with a motion to proceed in forma pauperis. Doc. Nos. 1–2. Plaintiff alleged that while in the custody of the San Diego County Sheriff from February 2020 until March 2022, he was subjected to the excessive use of force, deliberate indifference to his medical needs, unconstitutional conditions of confinement, denial of due process, loss of personal and legal property, and denial of access to the courts. Doc. No. 1 at 2-10. After the Court denied his in forma pauperis motion, Plaintiff paid the filing fee. Doc. Nos. 3–4. On February 27, 2023, the Court dismissed the Complaint for failure to state a claim pursuant to 28 U.S.C. § 1915A(b). Doc. No. 5. Plaintiff was notified of the deficiencies of his pleading and granted leave to amend. Id. at 3–19. On April 3, 2023, | || Plaintiff timely filed a First Amended Complaint (“FAC”). Doc. No. 6. The FAC renamed nine of the twelve Defendants from the original Complaint, added a retaliation claim, and realleged all claims presented in the original Complaint except the loss of property and access to courts claims. Jd. On April 21, 2023, the Court dismissed the FAC for failure to state a claim pursuant to 28 U.S.C. § 1915A(b). Doc. No. 7. Plaintiff was once again notified of the deficiencies of his pleading and granted leave to amend. /d. at 4-13. On June 13, 2023, the Court granted Plaintiff's request for a 60-day extension of time to amend, and the Second Amended Complaint was due on or before August 14, 2023. Doc. No. 9. On July 10, 2023, Plaintiff filed Objections to the Court’s Orders screening his }complaints, contending that in applying the screening provisions of 28 U.S.C. § 1915A(b) Court held him to a heightened pleading standard applicable to attorneys but }inapplicable to pro se litigants such as himself. Doc. No. 10. On July 25, 2023, the Court / overruled Plaintiff's objections and reminded him that his Second Amended Complaint was due on August 14, 2023. Doc. No. 11. Plaintiff constructively filed a notice of appeal on August 14, 2023, Doc. No. 12, but has not filed a Second Amended Complaint. Accordingly, the Court DISMISSES this action without prejudice based both on Plaintiff's failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915A(b) and his failure to prosecute in compliance with a court order requiring }amendment. See 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 Clerk of Court shall enter judgment accordingly. Dated: August 23, 2023 BMiidel M —{ hillr HON. MICHAEL M. ANELLO United States District Judge 2 oe