(PC) Luther v. California Department of Corrections & Rehabilitation

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 EVERETT LUTHER, Case No. 3:19-cv-01449-CAB-NLS Booking #19723372, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION PURSUANT vs. TO 28 U.S.C. § 1915(e)(2)(B) AND 14 FOR FAILING TO PROSECUTE CALIFORNIA DEP’T OF 15 IN COMPLIANCE WITH CORRECTIONS AND COURT ORDER 16 REHABILITATION; SAN DIEGO COUNTY; SAN DIEGO COUNTY 17 SHERIFF’S DEP’T; SHERIFF 18 WILLIAM GORE, 19 Defendants. 20 21 Plaintiff Everett Luther, formerly incarcerated at the East Mesa Reentry Facility in 22 San Diego, California, and proceeding pro se, first filed this civil rights action pursuant to 23 42 U.S.C. § 1983 in the Eastern District of California on July 29, 2019. See “Compl.,” ECF 24 No. 1 at 1. 25 I. Procedural History 26 Because Luther alleged the California Department of Corrections and Rehabilitation, 27 the County of San Diego, the San Diego County Sheriff’s Department, and its Sheriff, 28 William Gore, denied him earned conduct credits, and forced him to “serv[e] a longer 1 sentence in county jail” in violation of the Fourteenth Amendment, id. at 2‒6, his case was 2 transferred here pursuant to 28 U.S.C. § 1406(a). See ECF No. 4. On January 6, 2020, after 3 he filed a Motion to Proceed In Forma Pauperis (“IFP”) and a Notice of Change of Address 4 indicating he was no longer incarcerated, see ECF No. 9, the Court granted Luther leave to 5 proceed IFP, but dismissed his Complaint sua sponte for failing to state claim pursuant to 6 28 U.S.C. § 1915(e)(2)(B). See ECF No. 10. Luther was notified of his pleading 7 deficiencies, and was ordered to file an Amended Complaint within 45 days. Id. at 3‒11. 8 He was also warned his failure to amend would result in the dismissal of his case. Id. at 11, 9 citing Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take 10 advantage of the opportunity to fix his complaint, a district court may convert the dismissal 11 of the complaint into a dismissal of the entire action.”). 12 Luther has not file an Amended Complaint, nearly two months have passed since the 13 Court issued its January 6, 2020 Order, and he has filed no request for an extension of time. 14 “The failure of the plaintiff eventually to respond to the court’s ultimatum–either by 15 amending the complaint or by indicating to the court that [he] will not do so–is properly 16 met with the sanction of a Rule 41(b) dismissal.” Edwards v. Marin Park, 356 F.3d 1058, 17 1065 (9th Cir. 2004). 18 II. Conclusion and Order 19 Accordingly, the Court DISMISSES this civil action in its entirety based on 20 Plaintiff’s failure to state a claim upon which § 1983 relief can be granted pursuant to 28 21 U.S.C. § 1915(e)(2)(B), and his failure to prosecute as required by the Court’s January 6, 22 2020 Order. The Court further CERTIFIES that an IFP appeal would not be taken in good 23 / / / / / 24 / / / / / 25 / / / / / 26 / / / / / 27 / / / / / 28 / / / / / 1 || faith pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final judgment 2 || of dismissal and close the case. 3 IT IS SO ORDERED. 4 ||Dated: March 4, 2020 € ZL 5 Hon. Cathy Ann Bencivengo 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3