Pina v. Sacuan Security and Police

Opinion

ROBERT ANTHONY PIÑA, Case No. 3:21-cv01577-JAH-BLM CDCR #BN-1661, ORDER DISMISSING CIVIL Plaintiff, vs. TO 28 U.S.C. § 1915(e)(2)(B)(ii) AND § 1915A(b)(1) AND FOR FAILING SACUAN SECURITY & POLICE; TO PROSECUTE IN COMPLIANCE SAN DIEGO POLICE DEPARTMENT, WITH COURT ORDER Defendants. REQUIRING AMENDMENT Plaintiff Robert Anthony Piña, while incarcerated at Kern Valley State Prison in Delano, California, and proceeding pro se, filed this civil rights Complaint pursuant to 42 U.S.C. § 1983 on September 7, 2021. (See “Compl.,” ECF No. 1 at 1.) Piña claimed Sacuan Security and Police and the San Diego Police Department violated his “legal rights” on an unspecified occasion when an unidentified security guard assaulted him at the Sycuan Casino, and refused to return his personal property. (See id. at 3.) I. Procedural History Piña did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) at the time he filed his Complaint, but instead filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (See ECF No. 2.) On December 3, 2021, the Court granted Piña’s Motion to Proceed IFP, but dismissed his Complaint for failing to state claim and as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). (See ECF No. 3.) Piña was notified of his pleading deficiencies, and granted 45 days leave in which to file an Amended Complaint that fixed them. (/d. at 5-9.) Pifia was also warned his failure to amend would result in the dismissal of his case. (/d. at 9-10, 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.’’).) Pina’s Amended Complaint was due on or before January 17, 2022. More than three weeks have elapsed since that time, but to date, Pifia has failed to amend, and has 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). Conclusion and Order Accordingly, the Court DISMISSES this civil action in its entirety 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)(Gi) and § 1915A(b)(1), and his failure to prosecute as required by Court’s December 3, 2021 Order requiring amendment. 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: February 9, 2022 Mk n. John A. Houston A nited States District Judge ' In fact, the Court’s December 3, 2021 Order (ECF No. 3) was returned to the Clerk of Court as undeliverable by the U.S. Post Office on December 20, 2021, with a notation that Plaintiff was “discharged 3g || from CDCR custody.” (See ECF No. 4 at 1.) “A party proceeding pro se must keep the court and opposing parties advised as to current address” pursuant to S.D. Cal. CivLR 83.11.b.