Cymeyon V. Hill v. C. Martinez

• Court: District Court, N.D. California
• Decided: February 10, 2022
• Docket: 4:21-cv-05557
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 CYMEYON V. HILL, 7 Case No. 21-cv-05557-YGR (PR) Plaintiff, 8 ORDER OF DISMISSAL WITHOUT v. PREJUDICE 9 C. MARTINEZ, et al., 10 Defendants. 11

12 On January 5, 2022, the Court issued an Order Dismissing Complaint with Leave to 13 Amend; and Instructions to Clerk. Specifically, the Court granted plaintiff twenty-eight days from 14 the date of the Order to file an amended complaint to allege facts sufficient to state a cognizable 15 constitutional claim. Plaintiff was warned that the failure to timely file an amended complaint 16 would result in the dismissal of this action for failure to prosecute. The time for plaintiff to file his 17 amended complaint has passed, and no amended complaint has been filed.1 18 Taking into account the salient factors set forth in Ferdik v. Bonzelet, 963 F.2d 1258, 1260 19 (9th Cir. 1992), the Court finds that dismissal is warranted under Federal Rule of Civil Procedure 20 21 1 Plaintiff has a filed a document entitled, “Motion to Adhere for Reconsideration,” in 22 which he states that he has been retaliated against because his filing fees were “vacated.” Dkt. 11 at 1-2. Such allegations fail to amount to a cognizable claim because, as the Court mentioned in 23 its January 5, 2022 Order: “Without allegations of protected conduct and knowledge of such conduct by defendants, no claim for retaliation is stated.” See Dkt. 10 at 5. Also, the Court finds 24 that plaintiff misunderstands the nature of being granted leave to proceed in forma pauperis (“IFP”). The statute says that being granted IFP status waives prepayment of the filing fee. 28 25 U.S.C. § 1915(a)(1). It does not forgive the fee. See Robbins v. Switzer, 104 F.3d 895, 898 (7th Cir. 1997). Plaintiff has also failed to provide proof that his filing fees were waived as part of a 26 settlement agreement, and instead he has provided a letter from Deputy Attorney General Lucia Q. Li indicating that no such fees were waived as part of that settlement agreement. See Dkt. 13 at 1- 27 2. In any event, none of plaintiff’s filings amount to a filing which could be considered to be an 1 A1(b). ? See Yourish y. Cal. Amplifier, 191 F.3d 983, 989, 992 (9th Cir. 1999) (affirming dismissal 2 || of action following plaintiff's failure to amend complaint after receiving leave to do so, where the 3 interest in expeditious resolution of litigation, the court's management of its docket, and avoiding 4 || prejudice to defendants favored dismissal). Accordingly, 5 IT IS HEREBY ORDERED that the complaint in the above-captioned action is 6 || DISMISSED. The Clerk of the Court shall terminate all pending motions as moot, including his 7 “Motion to Adhere for Reconsideration” (Dkt. 11), and close the file. 8 This Order terminates Docket No. 11. 9 IT IS SO ORDERED. 10 || Dated: February 10, 2022 11 a ™. in sth fej 2 lleacK®, Sle. 2, J Upy YVONNE @®NZA&PEZ ROGBRS a 12 Usted States District Judge

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Z 18 19 20 21 22 23 24 yp 25 > If and when plaintiff is prepared to pursue his claims, he may file a new civil rights action. The limitations period to file a section 1983 action in California is two years, but it is 26 || tolled for up to two years during a continuous period of incarceration. See Silva v. Crain, 169 F. 3d 608, 610 (9th Cir. 1999) (holding, pursuant to Cal. Civ. Proc. Code § 340(3), that the 07 limitations period for filing a section 1983 action in California is one year); S.B. 688 (amending Cal. Civ. Proc. Code § 340(3) and adding section 335.1 to establish two-year residual limitations 2g || period for personal injury actions); Cal. Civ. Proc. Code § 352.1(a) (providing for an additional two years of tolling during a period of continual imprisonment).