Jones v. Nisleit

Opinion

MARLO Q. JONES, Case No.: 3:19-cv-01800-MMA-WVG

Plaintiff, ORDER DISMISSING CIVIL vs. ACTION CHIEF DAVID LISLEIT, et al., Defendants. Plaintiff Marlo Q. Jones, while housed at the San Diego County Jail, and proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 on September 18, 2019. See Compl., Doc. No. 1. I. Procedural History On October 8, 2019, the Court granted Plaintiff leave to proceed in forma pauperis (“IFP”), but dismissed his Complaint for failing to state any claim upon which relief could be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). See Doc. No. 5. Plaintiff was advised of his pleading deficiencies and granted thirty (30) days leave in which to file an Amended Complaint that fixed them. See id. at 5-8. Plaintiff was also cautioned, however, that if he failed to file an Amended Complaint that cured his pleading defects, the Court would dismiss his case. See id. at 8 (citing Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix his complaint, a district court may convert the dismissal of the complaint into a dismissal of the entire action.”’)). Plaintiff's Amended Complaint was due on or before November 8, 2019. But to date, Plaintiff has not filed an Amended Complaint, and has not requested an extension of time in which to do so. “The failure of the plaintiff eventually to respond to the court’s ultimatum — either by amended the complaint or by indicating to the court that [he] will not do so — is properly met with the sanction of a Rule 41(b) dismissal.” Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004). Conclusion and Order Accordingly, the Court DISMISSES this civil action in its entirety without prejudice based on Plaintiff’s failure to state a claim upon which § 1983 relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)@i) and § 1915A(b)(1), and his failure to prosecute pursuant to Fed. R. Civ. P. 41(b) in compliance with the Court’s October 8, Order. The Court further CERTIFIES that an IFP appeal would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final judgment of dismissal and close the file. DATED: April 1, 2020 J, CTU - 7 (2 Lox HON. MICHAEL M. ANELLO 5] United States District Judge 13