Burton v. McVay

Opinion

DEREK BURTON, Case No.: 24-cv-1302-MMA (JLB) CDCR #AI-5407, ORDER DISMISSING CASE FOR Plaintiff, FAILURE TO STATE A CLAIM vs. AND FAILURE TO PROSECUTE MCVAY, Warden, et al., Defendants. Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. On August 11, 2024, the Court dismissed the complaint for failure to state a claim and granted Plaintiff leave to amend on or before September 27, 2024. Doc. No. 5. On September 10, 2024, the Court granted Plaintiff’s motion for a 30-day extension of time to amend until October 28, 2024; on October 29, 2024, the Court granted Plaintiff’s second motion for a 30-day extension of time to amend until November 28, 2024; on December 11, 2024, the Court granted Plaintiff’s third motion for a 30-day extension of time to amend until January 16, 2025. Doc. Nos. 7, 9, 11. Plaintiff was instructed that if he failed to timely amend the Court will dismiss this action for failure to state a claim and failure to prosecute. Doc. No. 11 at 2 (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 dismissal of the entire action.”0). To date, Plaintiff has not filed an amended complaint. Accordingly, the Court DISMISSES this action without prejudice for failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) & 1915A(b)(1), and for failure to prosecute. The Clerk of Court shall enter final judgment accordingly and close the file. Dated: March 25, 2025 _____________________________ HON. MICHAEL M. ANELLO United States District Judge