Mackey v. People of the State of California

Opinion

DAVID ERNESTO MACKEY, Case No.: 3:20-CV-00931-TWR-KSC CDCR #C-56761 ORDER: Plaintiff, v. 1) DISMISSING CIVIL ACTION FOR FAILING TO STATE A CLAIM

PURSUANT TO 28 U.S.C. SECTION THE PEOPLE OF THE STATE OF 1915(e)(2)(B)(ii) CALIFORNIA; WILLIAM D. MUDD,

Judge Dept. 19; JEFFREY F. FRASER, AND Judge of the Superior Ct.; AMALIA L.

MEZA, Judge of the Superior Ct.; CRAIG 2) DISMISSING FOR FAILURE TO N. TEOFILO, Psy. D., PROSECUTE IN COMPLIANCE Psychologist/Psychiatric, WITH COURT ORDER REQUIRING Defendants. AMENDMENT David Ernesto Mackey (“Plaintiff”), a mentally disordered offender currently civilly committed at Coalinga State Hospital pursuant to California Penal Code Section 2972, is proceeding pro se in this civil rights action pursuant to 42 U.S.C. Section 1983. (See ECF No. 1, at 4, 50-52.) /// /// I. Procedural History On August 18, 2020, the Court1 granted Plaintiff leave to proceed in forma pauperis (“IFP”) and dismissed his Complaint for failure to state a claim upon which relief could be granted pursuant to 28 U.S.C. Section 1915(e)(2)(B)(ii). (See ECF No. 4, at 8-9.) Plaintiff was advised of the deficiencies in his Complaint and granted 45 days leave in which to file an Amended Complaint fixing them. (See id.) Plaintiff’s Amended Complaint was due on or before October 2, 2020. 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 amending 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). II. 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 relief may be granted pursuant to 28 U.S.C. Section 1915(e)(2)(B)(ii) and his failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b) in compliance with the Court’s August 18, 2020 Order. The Court further CERTIFIES that an IFP appeal would not be taken in good faith pursuant to 28 U.S.C. Section 1915(a)(3) and DIRECTS the Clerk to enter a final / / / / / / / / / / / / / / /

1 This case was originally assigned to the Honorable Gonzalo P. Curiel. On September 28, 2020, it was judgment of dismissal and close the file. Dated: November 5, 2020 —_—_ [5 1S bre 6 Honorable Todd W. Robinson United States District Court

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