Spatcher v. Baird

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

GREGORY LEON SPATCHER, Case No. 19-cv-01936-BAS (MSB) CDCR #BJ-9222, ORDER DISMISSING CIVIL Plaintiff, ACTION FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. v. § 1915(e)(2)(B) AND § 1915A(b) AND FOR FAILURE TO PROSECUTE NORI BAIRD; TRI CITY MEDICAL CENTER; OCEANSIDE POLICE Defendants. Plaintiff Gregory Spatcher, currently housed at the California Institution for Men located in Chino, California, and proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 on October 4, 2019. (See Compl., ECF No. 1.) On October 24, 2019, the Court granted Plaintiff leave to proceed in forma pauperis (“IFP”) but dismissed his Complaint for failing to state any claim upon which relief could be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). (See ECF No. 3.) Plaintiff was advised of his pleading deficiencies and granted 45 days leave in which to file an Amended Complaint that fixed them. (Id. at 7–8.) Plaintiff’s Amended Complaint was due on or before December 9, 2019. However, although nearly three months have passed since the Court issued its October 24, 2019 Order, Plaintiff has not filed an Amended Complaint, requested an extension of time in which to do so, or indicated that he intends to dismiss the action. “The failure of the plaintiff eventually to respond to the court’s ultimatum—eithet 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). Accordingly, the Court DISMISSES this civil action in its entirety without prejudice based on Plaintiff's failure to state a claim upon which § 1983 relief car granted pursuant to 28 U.S.C. § 1915(e)(2)(B)@i) and § 1915A(b)(1), and his failure tc prosecute pursuant to Fed. R. Civ. P. 41(b) in compliance with the Court’s October 24 Order. The Court further CERTIFIES that an IFP appeal would not be taken in gooc 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: January 23, 2020 (pil 4 (Lyohaa. 6 Is United States District Judge 2