Sanchez v. Webster ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MIGUEL SANCHEZ, Case No. 3:19-cv-01707-BAS-JLB CDCR #AC‒8280, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION PURSUANT vs. TO 28 U.S.C. § 1915(e)(2) AND 14 § 1915A(b) AND FOR FAILING WEBSTER, Correctional Officer; 15 TO PROSECUTE IN COMPLIANCE GROUD, Correctional Officer; WITH COURT ORDER 16 C. AYALA, Correctional Officer; REQUIRING AMENDMENT J. GARCIA, Correctional Officer; 17 Sgt. DURAN, 18 Defendants. 19 20 21 On September 7, 2019, Plaintiff Miguel Sanchez, while incarcerated at Richard J. 22 Donovan Correctional Facility in San Diego, California, and proceeding pro se, filed a civil 23 rights action pursuant to 42 U.S.C. § 1983. (See “Compl.,” ECF No. 1.) Plaintiff claimed 24 several correctional officials entered his cell on August 28, 2019, August 31, 2019, and 25 September 1, 2019, “trashed” his personal property and “stole” or “destroy[ed] [his] 26 confidential court legal mail” in retaliation for a CDCR 602 inmate appeal he filed in 27 December 2018. (Id. at 1‒5.) 28 / / / 1 Procedural History 2 On November 22, 2019, the Court granted Plaintiff's Motion to Proceed In Forma 3 || Pauperis (“IFP”’), but dismissed his Complaint sua sponte for failing to state claim pursuant 4 28 U.S.C. § 1915(e)(2) and § 1915A(b). (See ECF No. 3.) Plaintiff was notified of his 5 || pleading deficiencies and was ordered to file an Amended Complaint on or before January 6 ||6, 2020. Ud. at 5-11.) Plaintiff was also warned that failure to amend would result in the 7 || dismissal of his case. (Ud. at 11); see Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) 8 a plaintiff does not take advantage of the opportunity to fix his complaint, a district 9 || court may convert the dismissal of the complaint into a dismissal of the entire action.”)). 10 Plaintiff did not file an Amended Complaint by January 6, 2020, nor has he filed a 11 |/request for an extension of time. “The failure of the plaintiff eventually to respond to the 12 || court’s ultimatum—either by amending the complaint or by indicating to the court that [he] 13 || will not do so—is properly met with the sanction of a Rule 41(b) dismissal.” Edwards v. 14 || Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004). 15 ||II. Conclusion and Order 16 Accordingly, the Court DISMISSES this civil action in its entirety without prejudice 17 || based on Plaintiff’ s failure to state a claim upon which § 1983 relief can be granted pursuant 18 ||to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and his failure to prosecute as required by 19 || Court’s November 22, 2019 Order requiring amendment. The Court further CERTIFIES 20 an IFP appeal would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3) and 21 || DIRECTS the Clerk to enter a final judgment of dismissal and close the file. 22 IT IS SO ORDERED. 23 24 || DATED: January 22, 2020 / 25 (ypillg (Mohan 6 26 United States District Judge 27 28