Cavalier v. Newsom

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERT THOMAS CAVALIER, Case No. 20cv1615-MMA-DEB CDCR #E-98747, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION PURSUANT vs. TO 28 U.S.C. § 1915(e)(2)(B)(ii) AND 14 § 1915A(b)(1) AND FOR FAILING GAVIN NEWSOM, et al., 15 TO PROSECUTE IN COMPLIANCE Defendants. WITH COURT ORDERS 16 REQUIRING AMENDMENT 17 18 Plaintiff Robert Thomas Cavalier, incarcerated at Richard J. Donovan Correctional 19 Facility (“RJD”) in San Diego, California, is proceeding pro se and in forma pauperis 20 (“IFP”) in this civil rights action pursuant to 42 U.S.C. § 1983. In his Complaint, 21 Plaintiff claimed the Governor of California, a former Secretary of the California 22 Department of Corrections and Rehabilitation, the Director of the Board of Parole 23 Hearings (“BPH”), and BPH Commissioner Randy Grounds violated his Eighth and 24 Fourteenth Amendment rights during a September 6, 2019 parole suitability hearing. See 25 “Compl.,” Doc. No. 1 at 1‒6. 26 I. Procedural History 27 On December 11, 2020, the Court granted Plaintiff’s Motion to Proceed IFP, but 28 dismissed his Complaint sua sponte for failing to state a claim pursuant to 28 U.S.C. 1 § 1915(e)(2)(B) and § 1915A(b). See Doc. No. 7. The Court granted Plaintiff 45 days 2 leave in which to file an Amended Complaint that corrected his pleading deficiencies. 3 See id. at 21‒22; see also Lopez v. Smith, 203 F.3d 1122, 1130‒31 (9th Cir. 2000) (en 4 banc) (“[A] district court should grant leave to amend even if no request to amend the 5 pleading was made, unless it determines that the pleading could not possibly be cured.”) 6 (citation omitted)). 7 Plaintiff has since been granted three separate and generous extensions of time in 8 which to file his Amended Complaint, which was last ordered due by June 14, 2021. See 9 Doc. Nos. 9, 11, 13. Almost two months have elapsed since that time, but to date 10 Plaintiff has failed to amend in response to the Court’s repeated Orders, and has not 11 sought any additional extensions of time in which to comply.1 “The failure of the 12 plaintiff eventually to respond to the court’s ultimatum–either by amending the complaint 13 or by indicating to the court that [he] will not do so–is properly met with the sanction of a 14 Rule 41(b) dismissal.” Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004). 15 II. Conclusion and Order 16 Accordingly, the Court DISMISSES this civil action in its entirety based on 17 Plaintiff’s failure to state a claim upon which § 1983 relief can be granted pursuant to 28 18 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1), and his failure to prosecute as required by 19 Court’s December 11, 2020, December 31, 2020, February 26, 2021, and April 20, 2021 20 Orders. 21 // 22 // 23

24 25 1 The Court notes that Plaintiff submitted a document to RJD library officials for electronic filing on May 17, 2021, but the Court rejected it, returned it to Plaintiff via U.S. Mail on May 18, 2021, and directed 26 him to properly re-file his Amended Complaint with the Clerk of the Court via U.S. Mail on or before June 14, 2021. See Doc. Nos. 14, 14-1. S.D. Cal. General Order 653A permits e-filing from RJD only 27 for “initial filings by plaintiffs, defined as the complaint, an application to proceed in forma pauperis[,] … a motion seeking relief from [GO 653A], [or] a motion to exceed the page limits (initial documents.” 28 1 The Court further CERTIFIES that an IFP appeal would not be taken in good 2 || faith pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final 3 || judgment of dismissal and close the case. 4 IT IS SO ORDERED. 5 || DATE: August 5, 2021 Vth Lh -{ phktr 6 HON. MICHAEL M. ANELLO 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 ee