French v. Xiong

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KRISTOPHER G. FRENCH Case No.: 23-CV-1294 JLS (JLB) CDCR No. K-96643, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILING TO STATE 14 A CLAIM AND FOR FAILING TO PROSECUTE IN COMPLIANCE 15 v. WITH COURT ORDER 16 17 C. XIONG, 18 Defendant. 19

20 21 I. Introduction 22 On July 5, 2023, Kristopher French (“Plaintiff”), who is proceeding pro se and 23 currently housed at the Richard J. Donovan Correctional Facility, filed a civil rights 24 Complaint pursuant to 42 U.S.C. § 1983 in this Court. See ECF No. 1. Plaintiff did not 25 prepay the civil filing fee required by 28 U.S.C. § 1914(a); instead, he filed a Motion to 26 Proceed In Forma Pauperis (“Motion”) pursuant to 28 U.S.C. § 1915(a). See ECF No. 2. 27 1 On July 19, 2023, the Court granted Plaintiff's Motion and dismissed □□□□□□□□□□□ 2 Complaint pursuant to 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A(b)(1). See ECF No. 3 ||5. The Court’s Order allowed Plaintiff forty-five (45) days from July 19, 2023, to file an 4 |}amended complaint. /d. at 8. The Court informed Plaintiff that if he failed to file within 5 || the time provided, the Court would dismiss the civil action based both on Plaintiffs failure 6 ||to state a claim and his failure to prosecute in compliance with a court order requiring 7 |{amendment. Id. 8 Discussion 9 Plaintiff's forty-five-day filing period expired on September 2, 2023. See id. To 10 Plaintiff has neither filed an amended complaint nor requested an extension of time 11 which to do so. See generally Docket. “The failure of the plaintiff eventually to respond 12 ||to the court’s ultimatum—either by amending the complaint or by indicating to the court 13 || that [he] will not do so—is properly met with the sanction of a Rule 41(b) dismissal.” 14 || Edwards vy. Marin Park, Inc., 356 F.3d 1058, 1065 (9th Cir. 2004). 15 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)Gi) and § 1915A(b)(1) and his failure to prosecute as required by 19 || Court’s July 19, 2023 Order. 20 The Court further CERTIFIES that an IFP appeal would not be taken in good faith 21 pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final judgment of 22 || dismissal and close the file. 23 IT IS SO ORDERED. 24 25 ||Dated: September 19, 2019 jae L. Lo memeaite- 26 on. Janis L. Sammartino United States District Judge 27