Wilson v. Santana

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GERALD J. WILSON, Case No.: 3:23-cv-00250-RBM-DDL CDCR #B93800, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILURE TO vs. PROSECUTE 14

15 J. SANTANA, et al., 16 Defendants. 17 18 19 Gerald J. Wilson (“Plaintiff” or “Wilson”), filed a civil rights action (“Compl.”) 20 pursuant to 42 U.S.C. § 1983 in this Court on February 6, 2023. (Doc. 1.) The Court 21 granted Wilson IFP status and screened his Complaint pursuant to 28 U.S.C. §§ 1915(e) 22 and 1915A. (Doc. 7.) The Court found Wilson’s First and Eighth Amendment claims 23 against Defendants Santana, Frijas, Ortiz, Van Buren, Casian were barred by the statute of 24 limitations (id. at 9–11) and Plaintiff failed to state a First Amendment claim against 25 Defendants Dole and Miguel (id. at 11–13) but Plaintiff had stated an Eighth Amendment 26 claim against Defendant Miguel (id. at 11–12). Defendants Castro, Igbinosa, Montes, 27 Bojorquez, Rimbach, Bacomfield, Rhordanz, Zepp, Furlong, Eaken, Rowland, Garcia, 28 Ackvendo, and Geiwitz were dismissed without prejudice and without leave to amend in 1 this action because they were improperly joined pursuant to Federal Rule of Civil 2 Procedure 18 and 20. (Id. at 13–15.) 3 Wilson was given forty-five (45) days leave from the date of the Order in which to 4 either: (1) notify the Court of his intention to proceed with his Eighth Amendment 5 excessive force claim alleged in his original Complaint against Defendant Miguel only; or 6 (2) file an Amended Complaint which cured all the deficiencies of pleading noted in the 7 Court’s dismissal Order with respect to his First and Eighth Amendment claims against 8 Defendants Santana, Frijas, Ortiz, Van Buren, Casian, Miguel, and Dole only. (Id. at 17– 9 18.) The Court’s Order explicitly warned Wilson that if he failed to choose either of those 10 options within 45 days, the Court would enter an Order dismissing his case based both on 11 his failure to state a claim and his failure to prosecute in compliance with a court order. 12 (Id. at 18 (citing 28 U.S.C. § 1915(e)(2)(B)(ii), § 1915A(b)(1), and Lira v. Herrera, 427 13 F.3d 1164, 1169 (9th Cir. 2005).) 14 The Court’s direction and warning were clear and explicit, and the deadline for 15 Wilson to respond to the Court’s Order has passed. (Doc. 7 at 18 (June 5, 2023 Order 16 granting Wilson 45 days), 19 (warning Wilson if he did not choose an option within 45 17 days the dismissal would be entered).) The Court has received no filing or communication 18 from Wilson as required by the Court’s Order. 19 The Court has discretion to sua sponte dismiss a case for lack of prosecution or 20 failure to comply with a court order. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 21 1986) (“The district court has the inherent power sua sponte to dismiss a case for lack of 22 prosecution.”); see also Fed. R. Civ. P. 41(b) (providing for involuntary dismissal for 23 failure to prosecute or comply with the federal rules or court order); see also Lira v. 24 Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of 25 the opportunity to fix his complaint, a district court may convert the dismissal of the 26 complaint into a dismissal of the entire action.”). “The failure of the plaintiff eventually to 27 respond to the court’s ultimatum–either by amending the complaint or by indicating to the 28 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) (Explaining that when 2 plaintiffs fail to take any action when given an opportunity to amend or be dismissed 3 “resources continue to be consumed by a case sitting idly on the court’s docket.”). 4 Given the Court ordered Wilson to respond, warned him that a lack of response 5 || would result in dismissal, and that he did not respond by the Court ordered deadline or 6 since, the Court DISMISSES this civil action in its entirety. The Court DIRECTS the 7 || Clerk to enter a final judgment of dismissal and close the file. 8 IT IS SO ORDERED. 9 Dated: August 25, 2023 FR Bo ? L > 10 HON. RUTH BERMUDEZ MONTENEGRO 1] UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3