Smith v. Alameda County Sheriff Dept

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 D’ANDRE SMITH, 8 Case No. 22-cv-07200-AMO (PR) Plaintiff, 9 v. ORDER OF DISMISSAL 10 WITHOUT PREJUDICE OFFICER SUSAKI, et al., 11 Defendants. 12

13 On July 15, 2024, the Court issued a Second Order of Dismissal with Leave to Amend. 14 Specifically, the Court granted D’Andre Smith twenty-eight days from the date of the Order to file 15 a section amended complaint to correct the deficiencies in his amended complaint. The Court 16 warned Smith that the failure to file a timely amended complaint would result in the dismissal of 17 this action for failure to prosecute. The time for Smith to file an amended complaint has passed, 18 and he has failed to do so. Taking into account the salient factors set forth in Ferdik v. Bonzelet, 19 963 F.2d 1258, 1260 (9th Cir. 1992), the Court finds that dismissal is warranted under Federal 20 Rule of Civil Procedure 41(b).1 See Yourish v. Cal. Amplifier, 191 F.3d 983, 989, 992 (9th Cir. 21 1999) (affirming dismissal of action following plaintiff’s failure to amend complaint after 22 receiving leave to do so, where the interest in expeditious resolution of litigation, the court’s 23 management of its docket, and avoiding prejudice to defendants favored dismissal). 24 1 If and when Smith is prepared to pursue his claims, he may file a new civil rights action. 25 The limitations period to file a section 1983 action in California is two years, but it is tolled for up to two years during a continuous period of incarceration. See Silva v. Crain, 169 F. 3d 608, 610 26 (9th Cir. 1999) (holding, pursuant to Cal. Civ. Proc. Code § 340(3), that the limitations period for filing a section 1983 action in California is one year); S.B. 688 (amending Cal. Civ. Proc. Code 27 § 340(3) and adding section 335.1 to establish two-year residual limitations period for personal 1 Accordingly, IT IS HEREBY ORDERED that the complaint in the above-captioned 2 || actionis DISMISSED. Further, this Court CERTIFIES that any in forma pauperis (“IFP’”) 3 appeal from this Order would not be taken “in good faith” pursuant to 28 U.S.C. § 1915(a)(3). See 4 Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th 5 Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if appeal would not be 6 frivolous). 7 The Clerk of the Court shall terminate all pending motions and close the file. 8 IT IS SO ORDERED. 9 Dated: October 28, 2024 10 11 cok: ARACELI MARTINEZ-OLGUIN 12 United States District Judge

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