Felix v. Clayton

Opinion

DONALD FELIX, Case No.: 3:22-cv-0559-GPC-KSC CDCR #AS-4135, ORDER DISMISSING CIVIL Plaintiff, ACTION FOR FAILING TO STATE vs. A CLAIM AND FOR FAILING TO PROSECUTE IN COMPLIANCE

WITH COURT ORDER REQUIRING DAVID CLAYTON, S. GATES, S. AMENDMENT ROBERTS, R. BARENCHI, et al., Defendants. Donald Felix (“Plaintiff”), currently incarcerated at Richard J. Donovan Correctional Facility (“RJD”) and proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 on April 20, 2022. (Dkt. No. 1, Compl.) Subsequently, on July 28, 2022, the Court granted Plaintiff’s motion to proceed in forma pauperis, and sua sponte dismissed the complaint for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii) and 28 U.S.C. § 1915A(b)(1) with leave to amend. (Dkt. No. 3.) Plaintiff filed a first amended complaint on September 16, 2022. (Dkt. No. 4.) On September 27, 2022, the Court sua sponte dismissed the first amended complaint for failure to state a claim and granted Plaintiff leave to file a second amended complaint. ] (Dkt. No. 5.) On December 3, 2022, Plaintiff filed a second amended complaint. (Dkt. No. 9.) On May 18, 2023, the Court sua sponte dismissed the second amended complaint for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)Gii) and 28 U.S.C. § 1915A(b)(1) with one final opportunity to amend his Eighth Amendment claim as to Defendant Clayon only. (Dkt. No. 10.) Plaintiff was granted 30 days from the date of Court’s order, or June 17, 2023, to file a third amended complaint. (U/d.) Over two months have passed since the Court’s dismissal order, and to date, Plaintiff has not filed a third amended complaint nor sought an extension of time to file one. Accordingly, the Court DISMISSES this civil action in its entirety without further leave to amend based on Plaintiff's failure to state a claim upon which relief can be granted and for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004) (“The failure of the plaintiff eventually to respond to the court’s ultimatum—either by amending the complaint or indicating to the court that [she] will not do so—is properly met with the sanction of a Rule 41(b) dismissal.”’); Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not 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 Court DIRECTS the Clerk of Court to enter final judgment of dismissal and to close the file. Dated: September 12, 2023 Hon. athe Cae United States District Judge