Gipson v. Fresh Catch

Opinion

DEMARIA GIPSON, Case No. 22-cv-01518-YGR (PR) Plaintiff, v. ORDER OF DISMISSAL WITHOUT FRESH CATCH, et al., Defendants.

On October 12, 2022, the Court issued an Order of Dismissal with Leave to Amend; and Addressing Plaintiff’s Pending Motion. Specifically, the Court granted plaintiff twenty-eight days from the date of the Order to file an second amended complaint (SAC) to allege facts sufficient to state a cognizable constitutional claim. Plaintiff was warned that the failure to timely file his SAC would result in the dismissal of this action for failure to prosecute. The time for plaintiff to file his SAC has passed, and no SAC has been filed. Taking into account the salient factors set forth in Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992), the Court finds that dismissal is warranted under Federal Rule of Civil Procedure 41(b).1 See Yourish v. Cal. Amplifier, 191 F.3d 983, 989, 992 (9th Cir. 1999) (affirming dismissal of action following plaintiff's failure to amend complaint after receiving leave to do so, where the interest in expeditious resolution of litigation, the court’s management of its docket, and avoiding prejudice to defendants favored dismissal). 1 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 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 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 Accordingly, IT IS HEREBY ORDERED that the amended complaint in the above- captioned action is DISMISSED without prejudice. The Clerk of the Court shall terminate all pending motions and close the file. Dated: ____________________________________ JUDGE YVONNE GONZALEZ ROGERS United States District Judge