Thomas v. Richard J. Donovan ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 X. LARRY JOSEPH THOMAS, Case No.: 3:19-cv-02181-JAH-RBB CDCR #J-05107, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILING TO STATE vs. A CLAIM PURSUANT TO 14 28 U.S.C. § 1915(e)(2)(B) AND RICHARD J. DONOVAN, Warden, 15 § 1915A(b) AND FOR FAILING et al., TO PROSECUTE IN COMPLIANCE 16 Defendants. WITH COURT ORDER 17 REQUIRING AMENDMENT 18 19 X. Larry Joseph Thomas (“Plaintiff”), incarcerated at Richard J. Donovan 20 Correctional Facility in San Diego, California, is proceeding pro se in this civil rights 21 action, filed pursuant to 42 U.S.C. § 1983. 22 I. Procedural Background 23 At the time he filed his Complaint, Plaintiff did not prepay the $400 filing fee 24 mandated by 28 U.S.C. § 1914(a); instead, he filed several Motions to Proceed In Forma 25 Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a), supplemental documents in support, and 26 a Motion to Appoint Counsel. (See ECF Nos. 1, 2‒4, 7, 9.) 27 On January 22, 2020, the Court granted Plaintiff’s Motion to Proceed IFP, denied 28 his Motion to Appoint Counsel, conducted its mandatory initial screening of his Complaint, 1 and dismissed it sua sponte for failing to state a claim pursuant to 28 U.S.C. 2 § 1915(e)(2)(B) and § 1915A(b). (See ECF No. 10.) The Court also granted Plaintiff leave 3 to amend and directed him to file an Amended Complaint that addressed all the deficiencies 4 of pleading it identified on or before March 2, 2020. (Id. at 5-11); see also Lopez v. Smith, 5 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc) (“[A] district court should grant leave to 6 amend even if no request to amend the pleading was made, unless it determines that the 7 pleading could not possibly be cured.”) (citations omitted)). 8 On February 24, 2020, just one week before his Amended Complaint was due, 9 Plaintiff filed a document entitled “Motion Requesting Continuance” (ECF No. 14). While 10 Plaintiff did not reference the Court’s January 22, 2020 Order, or even acknowledge his 11 need to amend, he asked the Court for a “continuance” and to “except [sic] and grant [his] 12 motions.” (Id. at 1.) Liberally construing this as a motion for an extension of time in which 13 to submit his Amended Complaint, the Court granted Plaintiff’s Motion and extended the 14 time in which he had to amend until April 10, 2020. (See ECF No. 17 at 3.) The Court 15 again warned Plaintiff that his failure to amend would result in the dismissal of his case. 16 (See ECF No. 10 at 11; ECF No. 17 at 3-4 (citing Lira v. Herrera, 427 F.3d 1164, 1169 17 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix his 18 complaint, a district court may convert the dismissal of the complaint into a dismissal of 19 the entire action.”)). 20 More than four months have elapsed since the Court first dismissed Plaintiff’s 21 original Complaint on January 22, 2020. Yet, he has failed to file an Amended Complaint, 22 and has not requested a second extension of time in which to do so.1 “The failure of the 23 24 25 1 On February 26, 2020, Plaintiff did file a Notice of Appeal in the Ninth Circuit seeking 26 to challenge this Court’s January 22, 2020 screening order. See ECF Nos. 18, 19 (Ninth 27 Cir. Ct. App. No. 20-55259). But this appeal was dismissed because the order Plaintiff sought to challenge was not final or appealable. See ECF No. 21 at 1 (citing WMX Techs., 28 1 || plaintiff eventually to respond to the court’s ultimatum-—either by amending the complaint 2 by indicating to the court that [he] will not do so—is properly met with the sanction of a 3 41(b) dismissal.” Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004). 4 Conclusion and Order 5 Accordingly, the Court DISMISSES this civil action in its entirety based on 6 || Plaintiff's failure to state a claim upon which § 1983 relief can be granted pursuant to 28 7 ||U.S.C. § 1915(e)(2)(B) and § 1915A(b), and his failure to prosecute pursuant to Fed. R. 8 ||Civ. P. 41(b) in compliance with the Court’s January 22, 2020 and March 6, 2020 Orders. 9 || The Clerk is DIRECTED to enter a final judgment of dismissal and to close the file. 10 IT IS SO ORDERED. 11 12 || Dated: June 3, 2020 VU 13 Hofi. John A. Houston 14 Upited States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 0g 27, 2020 judgment became final when its mandate issued on April 20, 2020. See ECF No. 22. More than a month has passed since then, and still Plaintiff has made no effort to amend.