Gonzalez v. GEO Western Detention Facility

Opinion

1 2 3 4 5 6 9 10 RAUL GONZALEZ, Case No.: 3:24-cv-00257-WQH-AHG

11 Plaintiff, ORDER DISMISSING CIVIL 12 vs. ACTION FOR FAILURE TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2) AND 1915A(b) FACILITY; N. VAZQUEZ, GEO Facility Administrator; CARNEY, Associate PROSECUTE IN COMPLIANCE 15 Warden; T. HARTLEY, GEO Counselor, WITH COURT ORDER 16 Defendants. 17 18 19 HAYES, Judge: 20 In this civil action filed pursuant to Bivens v. Six Unknown Federal Narcotics 21 Agents, 403 U.S. 388 (1971), pro se Plaintiff Raul Gonzalez alleged Defendants violated 22 his constitutional rights by failing to provide access to an American Indian spiritual advisor 23 during his three-day hunger strike in December 2023. (ECF No. 1 at 1‒5.) 24 On July 1, 2024, the Court granted Gonzalez leave to proceed in forma pauperis, but 25 screened his Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A, and dismissed it 26 sua sponte for failure to state a claim upon which Bivens relief can granted. (ECF No. 3 at 27 3, 6‒12.) The Court noted that while it was unlikely Gonzalez would be able to state a 28 plausible claim for relief under Bivens, it granted him forty-five days leave in which to | |}amend and provide more detailed factual allegations that might cure his pleading 2 || deficiencies in light of the U.S. Supreme Court’s decision in Egbert v. Boule, 596 U.S. 482, 3 ||498 (2022) (finding “no Bivens cause of action for [a] First Amendment retaliation 4 |\claim.”). Ud. at 12-13.) The Court cautioned Gonzalez his failure to act would result in 5 || dismissal both for failure to state a claim and for failure to prosecute. (/d. at 13-14.) 6 To date, Gonzalez has failed to comply with the Court’s Order, and has not requested 7 ||an extension of time in which to do so.! “The failure of the plaintiff eventually to respond 8 |/to the court’s ultimatum—cither by amending the complaint or by indicating to the court 9 ||that [he] will not do so—is properly met with the sanction of a Rule 41(b) dismissal.” 10 || Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th Cir. 2004). 12 Accordingly, the Court DISMISSES this civil action in its entirety based on 13 Plaintiffs failure to state a claim upon which Bivens relief can be granted pursuant to 28 14 |/U.S.C. §§ 1915(e)(2)(B)Gi) and 1915A(b)(1), and his failure to prosecute as required by 15 Court’s July 1, 2024 Order. 16 The Court further CERTIFIES that an IFP appeal would not be taken in good faith 17 || pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final judgment of 18 || dismissal and close the file. 20 Dated: October 3, 2024 BME: Me 2 Ma 21 Hon. William Q. Hayes 9 United States District Court 23 24 95 In fact, the Court’s July 1, 2024 Order was returned undeliverable by the U.S. Post Office on July 9, 2024. (ECF No. 4.) Gonzalez has not filed a notice of change of address or any other document either 26 || before or since. See S.D. Cal. Civil Local Rule 83.11.b (“A party proceeding pro se must keep the Court and opposing parties advised as to current address. If mail directed to a pro se plaintiff by the Clerk at the 27 plaintiff's last designated address is returned by the Post Office, and if such plaintiff fails to notify the 28 Court and opposing parties within 60 days thereafter of the plaintiff's current address, the Court may dismiss the action without prejudice for failure to prosecute.”).