Gipson v. Fresh Catch

N.D. California

Gipson v. Fresh Catch

DecidedNovember 15, 2022

Docket4:22-cv-01518

StatusUnknown

This text of Gipson v. Fresh Catch (Gipson v. Fresh Catch) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Gipson v. Fresh Catch, (N.D. Cal. 2022).

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 DEMARIA GIPSON, 8 Case No. 22-cv-01518-YGR (PR) Plaintiff, 9 v. ORDER OF DISMISSAL WITHOUT 10 PREJUDICE FRESH CATCH, et al., 11 Defendants. 12

13 On October 12, 2022, the Court issued an Order of Dismissal with Leave to Amend; and 14 Addressing Plaintiff’s Pending Motion. Specifically, the Court granted plaintiff twenty-eight days 15 from the date of the Order to file an second amended complaint (SAC) to allege facts sufficient to 16 state a cognizable constitutional claim. Plaintiff was warned that the failure to timely file his SAC 17 would result in the dismissal of this action for failure to prosecute. The time for plaintiff to file his 18 SAC has passed, and no SAC has been filed. Taking into account the salient factors set forth in 19 Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992), the Court finds that dismissal is 20 warranted under Federal Rule of Civil Procedure 41(b).1 See Yourish v. Cal. Amplifier, 191 F.3d 21 983, 989, 992 (9th Cir. 1999) (affirming dismissal of action following plaintiff's failure to amend 22 complaint after receiving leave to do so, where the interest in expeditious resolution of litigation, 23 the court’s management of its docket, and avoiding prejudice to defendants favored dismissal). 24 1 If and when plaintiff is prepared to pursue his claims, he may file a new civil rights 25 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. 26 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 27 Cal. Civ. Proc. Code § 340(3) and adding section 335.1 to establish two-year residual limitations 1 Accordingly, IT IS HEREBY ORDERED that the amended complaint in the above- 2 captioned action is DISMISSED without prejudice. The Clerk of the Court shall terminate all 3 pending motions and close the file. 4 IT IS SO ORDERED. 5 Dated: ____________________________________ JUDGE YVONNE GONZALEZ ROGERS 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 DEMARIA GIPSON, 8 Case No. 22-cv-01518-YGR (PR) Plaintiff, 9 v. ORDER OF DISMISSAL WITHOUT 10 PREJUDICE FRESH CATCH, et al., 11 Defendants. 12

13 On October 12, 2022, the Court issued an Order of Dismissal with Leave to Amend; and 14 Addressing Plaintiff’s Pending Motion. Specifically, the Court granted plaintiff twenty-eight days 15 from the date of the Order to file an second amended complaint (SAC) to allege facts sufficient to 16 state a cognizable constitutional claim. Plaintiff was warned that the failure to timely file his SAC 17 would result in the dismissal of this action for failure to prosecute. The time for plaintiff to file his 18 SAC has passed, and no SAC has been filed. Taking into account the salient factors set forth in 19 Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992), the Court finds that dismissal is 20 warranted under Federal Rule of Civil Procedure 41(b).1 See Yourish v. Cal. Amplifier, 191 F.3d 21 983, 989, 992 (9th Cir. 1999) (affirming dismissal of action following plaintiff's failure to amend 22 complaint after receiving leave to do so, where the interest in expeditious resolution of litigation, 23 the court’s management of its docket, and avoiding prejudice to defendants favored dismissal). 24 1 If and when plaintiff is prepared to pursue his claims, he may file a new civil rights 25 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. 26 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 27 Cal. Civ. Proc. Code § 340(3) and adding section 335.1 to establish two-year residual limitations 1 Accordingly, IT IS HEREBY ORDERED that the amended complaint in the above- 2 captioned action is DISMISSED without prejudice. The Clerk of the Court shall terminate all 3 pending motions and close the file. 4 IT IS SO ORDERED. 5 Dated: ____________________________________ JUDGE YVONNE GONZALEZ ROGERS 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

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