Knight v. Does ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DONALD KORRIE KNIGHT, Case No. 3:19-cv-01373-LAB-RBM CDCR #AY-7867, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILING TO STATE vs. A CLAIM PURSUANT 14 TO 28 U.S.C. § 1915(e)(2) AND JOHN & JANE DOES, Counselor & 15 § 1915A(b) AND FOR FAILING Correc. Officers, Records, TO PROSECUTE IN COMPLIANCE 16 Defendants. WITH COURT ORDER 17 REQUIRING AMENDMENT 18 19 Plaintiff Donald Korrie Knight, while incarcerated at Richard J. Donovan 20 Correctional Facility (“RJD”) in San Diego, California, and proceeding pro se, filed this 21 civil rights action pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1.) Knight sought 22 to hold several unidentified RJD correctional officials liable for damages based on his 23 delayed release date. (Id. at 3.) 24 I. Procedural History 25 On October 9, 2019, the Court granted Knight leave to proceed in forma pauperis, 26 but dismissed his Complaint for failing to state any claim upon which relief could be 27 granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). (See ECF No. 5.) Knight 28 was informed of his various pleading deficiencies, and granted 45 days leave in which to 1 file an Amended Complaint that fixed them. (Id. at 4‒8.) Knight was also warned his 2 failure to amend would result in the dismissal of his case. (Id. at 8‒9, citing Lira v. 3 Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of 4 the opportunity to fix his complaint, a district court may convert the dismissal of the 5 complaint into a dismissal of the entire action.”)). 6 Almost two full months have passed since the Court’s October 9, 2019 Order, and 7 Knight’s Amended Complaint was due on or before November 25, 2019.1 But to date, 8 Knight has failed to file an Amended Complaint, and has not requested an extension of 9 time in which to do so.2 “The failure of the plaintiff eventually to respond to the court’s 10 ultimatum–either by amending the complaint or by indicating to the court that [he] will 11 not do so–is properly met with the sanction of a Rule 41(b) dismissal.” Edwards v. Marin 12 Park, 356 F.3d 1058, 1065 (9th Cir. 2004). 13 II. Conclusion and Order 14 Accordingly, the Court DISMISSES this civil action in its entirety without 15 prejudice based on Knight’s failure to state a claim upon which § 1983 relief can be 16 granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and his failure to 17 prosecute pursuant to FED. R. CIV. P. 41(b) in compliance with the Court’s October 9, 18 2019 Order (ECF No. 5). 19 /// 20 21 22 1 Because the 45 day period for amendment elapsed on November 23, 2019, which fell on 23 a Saturday, Knight had until Monday, November 25, 2019, to comply with the Court’s October 9, 2019 Order. See Fed. R. Civ. P. 6(a)(1)(C). 24 25 2 In fact, the Court’s October 9, 2019 Order was returned undeliverable by the U.S. Post Office on October 24, 2019 (ECF No. 6), and Knight has filed nothing since. It appears he 26 is no longer in the custody of the California Department of Corrections and Rehabilitation. 27 See https://inmatelocator.cdcr.ca.gov/Results.aspx (last visited Dec. 2, 2019). The Local Rules of this Court provide that “[a] party proceeding pro se must keep the court and 28 1 The Court further CERTIFIES that an IFP appeal would not be taken in good 2 || faith pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final 3 || judgment of dismissal and close the file. 4 IT IS SO ORDERED. 5 6 || Dated: December 5, 2019 ( Abe, 4 ‘4 Zuni) 7 Hon. Larry Alan Burns g Chief United States District Judge 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 oo