Burhardt v. Alvarez

• Court: District Court, N.D. California
• Decided: June 3, 2022
• Docket: 4:21-cv-01068
• Status: Unknown

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 DARRYL BURGHARDT, 6 Case No. 21-cv-01068-YGR (PR) Plaintiff, 7 ORDER OF DISMISSAL WITHOUT v. PREJUDICE 8 LOUIS ALVAREZ, et al., 9 Defendants. 10

11 On April 25, 2022, the Court issued an Order Dismissing Certain Claims Without 12 Prejudice to Filing in Eastern District; Dismissing Remaining Claims With Leave to Amend; and 13 Denying Plaintiff’s Request for Preliminary Injunction. Specifically, the Court granted plaintiff 14 twenty-eight days to file an amended complaint to correct the deficiencies outlined in its April 25, 15 2022 Order. Plaintiff was warned that the failure to timely file an amended complaint would 16 result in the dismissal of this action for failure to prosecute. 17 The time for plaintiff to file his amended complaint has passed, and no amended complaint 18 has been filed. Taking into account the salient factors set forth in Ferdik v. Bonzelet, 963 F.2d 19 1258, 1260 (9th Cir. 1992), the Court finds that dismissal is warranted under Federal Rule of Civil 20 Procedure 41(b).1 See Yourish v. Cal. Amplifier, 191 F.3d 983, 989, 992 (9th Cir. 1999) 21 (affirming dismissal of action following plaintiff’s failure to amend complaint after receiving 22 leave to do so, where the interest in expeditious resolution of litigation, the court’s management of 23 its docket, and avoiding prejudice to defendants favored dismissal). 24 1 If and when plaintiff is prepared to pursue his claims, he may file a new civil rights 25 action. The limitations period to file a section 1983 action in California is two years, but it is tolled for up to two years during a continuous period of incarceration. See Silva v. Crain, 169 F. 26 3d 608, 610 (9th Cir. 1999) (holding, pursuant to Cal. Civ. Proc. Code § 340(3), that the limitations period for filing a section 1983 action in California is one year); S.B. 688 (amending 27 Cal. Civ. Proc. Code § 340(3) and adding section 335.1 to establish two-year residual limitations 1 Accordingly, 2 IT IS HEREBY ORDERED that the complaint in the above-captioned action is 3 DISMISSED without prejudice. Further, this Court CERTIFIES that any in forma pauperis 4 || (“IFP”) appeal from this Order would not be taken “in good faith” pursuant to 28 U.S.C. 5 § 1915(a)(3). See Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 6 || F.2d 548, 550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if 7 appeal would not be frivolous). 8 The Clerk of the Court shall close the file. 9 IT IS SO ORDERED. 10 Dated: June 3, 2022 11 pee Lda pheLlee. □□ JUDGE YVONNE GONZALEZ ROGERS 12 United States District Judge

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