Joseph v. Clayton

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ALONZO JOSEPH, Case No. 3:19-cv-2139-GPC-RBM CDCR #K-62045, 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 Dr. DAVID CLAYTON, M.D., WITH COURT ORDER 16 Defendant. REQUIRING AMENDMENT 17 18 19 Plaintiff Alonzo Joseph, proceeding pro se, currently incarcerated at California 20 State Prison‒Sacramento, filed a civil complaint against Dr. David Clayton, a medical 21 doctor employed at Richard J. Donovan Correctional Facility (“RJD”) in San Diego, CA. 22 (Dkt. No. 1-3, Compl. at 2‒5.) He alleges Dr. Clayton’s decision in 2018 to discontinue 23 Tramadol in favor of non-narcotic pain relievers caused him severe pain and invoked the 24 Eighth Amendment. (Id. at 6-8.) He claims that Dr. Clayton cut him off from his pain 25 medication without any penological reason. (Id.) Joseph further alleges Dr. Clayton 26 “deliberately retaliated” against him by playing games with “[his] [t]ramadol pain 27 medication,” “without any penological reason.” (Id. at 9, 14.) 28 / / / 1 I. Procedural History 2 On February 18, 2020, the Court overruled Plaintiff’s objection to removal, 3 granted Defendant’s motion to dismiss Plaintiff’s Eighth Amendment claims under 4 Federal Rule of Civil Procedure 12(b)(6), sua sponte dismissed Plaintiff’s retaliation 5 claims under 28 U.S.C. § 1915A(b)(1), declined to exercise supplemental jurisdiction 6 over his state law general negligence and intentional tort claims pursuant to 28 U.S.C. § 7 1367(c), and granted him leave to amend. (Dkt. No. 8.) 8 Plaintiff was notified of his pleading deficiencies and granted leave to file an 9 Amended Complaint that fixed them, if he could. (Id. at 7-13.) Plaintiff was also warned 10 that his failure to amend would result in the dismissal of his case. (Id. at 15 (citing Lira 11 v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage 12 of the opportunity to fix his complaint, a district court may convert the dismissal of the 13 complaint into a dismissal of the entire action.”)). 14 Plaintiff’s Amended Complaint was due on or before April 1, 2020, and over one 15 month has passed since the Court issued its February 18, 2020 Order. But to date, 16 Plaintiff has failed to file an Amended Complaint, and has not requested an extension of 17 time in which to do so. “The failure of the plaintiff eventually to respond to the court’s 18 ultimatum–either by amending the complaint or by indicating to the court that [he] will 19 not do so–is properly met with the sanction of a Rule 41(b) dismissal.” Edwards v. 20 Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004). 21 II. Conclusion and Order 22 Accordingly, the Court DISMISSES this civil action in its entirety without 23 prejudice based on Plaintiff’s failure to state a claim upon which § 1983 relief can be 24 granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and because he has failed 25 to prosecute as required by the Court’s February 18, 2020 Order requiring amendment. 26 See Fed. R. Civ. P. 41(b). 27 The Court further CERTIFIES that an IFP appeal would not be taken in good 28 faith pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final 1 || judgment of dismissal and close the file. 2 IT ISSO ORDERED. 3 Dated: April 29, 2020 2 aaho Ca 4 Hon. Gonzalo P. Curiel 5 United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 ee