Jones v. Motel 6

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARIO Q. JONES, Case No. 3:19-cv-01831-AJB-MDD Booking #19750426, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION PURSUANT vs. TO 28 U.S.C. § 1915(e)(2) AND 14 § 1915A(b) AND FOR FAILING

15 TO PROSECUTE IN COMPLIANCE MOTEL 6: D’ANGELO’S TOWING; WITH COURT ORDER 16 DAISEY BALBUERA, Motel 6 Clerk; REQUIRING AMENDMENT 17 OFFICER JOHN McGOUGH, National City Police, 18 Defendants. 19 20 21 Plaintiff Mario Q. Jones, while detained at the San Diego County Jail in San Diego, 22 California, and proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 23 (“Compl.”) on September 23, 2019. See Compl., ECF No. 1. 24 While the factual and legal basis for his claims was not clear, Jones’s Complaint 25 sought the recovery of a $100 deposit he made to the Motel 6 clerk in National City on July 26 12, 2019, and $510,000 in general and punitive damages from a private towing company 27 and the National City Police Officer who arrested him for trespassing. See id. at 3‒4, 6‒7, 28 10. 1 I. Procedural History 2 On December 9, 2019, the Court granted Jones’s Motion to Proceed In Forma 3 Pauperis (“IFP”), but dismissed his Complaint for failing to state claim pursuant to 28 4 U.S.C. § 1915(e)(2) and § 1915A(b). See ECF No. 3. Jones was notified of his pleading 5 deficiencies and granted 45 days leave to file an Amended Complaint that fixed them, if 6 he could. Id. at 5-10. Jones was also warned his failure to amend would result in the 7 dismissal of his case. Id. at 10 (citing Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) 8 (“If a plaintiff does not take advantage of the opportunity to fix his complaint, a district 9 court may convert the dismissal of the complaint into a dismissal of the entire action.”)). 10 Jones’s Amended Complaint was due on or before January 23, 2020. More than a 11 month has elapsed since that time, but to date, Jones has failed to amend, and has not 12 requested an extension of time in which to do so.1 “The failure of the plaintiff eventually 13 to respond to the court’s ultimatum–either by amending the complaint or by indicating to 14 the court that [he] will not do so–is properly met with the sanction of a Rule 41(b) 15 dismissal.” Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004). 16 II. Conclusion and Order 17 Accordingly, the Court DISMISSES this civil action in its entirety without prejudice 18 based on Jones’s failure to state a claim upon which § 1983 relief can be granted pursuant 19 to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and his failure to prosecute as required by 20 Court’s December 9, 2019 Order requiring amendment. See also S.D. Cal. CivLR 83.11.b. 21 (“If mail directed to a pro se plaintiff by the clerk at the plaintiff’s last designated address 22

23 1 In fact, the Court’s December 9, 2019 Order was returned undeliverable by the U.S. Post 24 Office on December 23, 2019. See ECF No. 4. The Court has since confirmed Jones is no 25 longer in the custody of the San Diego County Sheriff’s Department, see https://apps. sdsheriff.net/wij/WijList.aspx?LastName=Jones&FirstName=Mario (last accessed Feb. 26 24, 2020), and he has filed nothing since submitting his original Complaint and IFP Motion 27 in September 2019. The Local Rules of this Court provide that “[a] party proceeding pro se must keep the court and opposing parties advised as to current address.” See S.D. Cal. 28 1 ||is returned by the Post Office, and if such plaintiff fails to notify the court ... within 60 2 || days thereafter of [his] current address, the court may dismiss the action without prejudice 3 || for failure to prosecute.’’). 4 The Court further CERTIFIES that an IFP appeal would not be taken in good faith 5 || pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final judgment of 6 || dismissal and close the file. 7 IT IS SO ORDERED. 8 9 Dated: February 24, 2020 © 10 Hon, Anthony J.Battaglia 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3