Rivera v. San Diego Central Jail ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JORGE RIVERA, CDCR #G-16129, Case No.: 19-CV-1259 JLS (NLS) 12 Plaintiff, ORDER DISMISSING CIVIL 13 vs. ACTION FOR FAILING TO STATE A CLAIM PURSUANT TO 14 SAN DIEGO CENTRAL JAIL; 28 U.S.C. § 1915(e)(2)(B) AND SAN DIEGO COUNTY SHERIFF; 15 § 1915A(b) AND FOR FAILING JOHN & JANE DOES, TO PROSECUTE IN COMPLIANCE 16 Defendants. WITH COURT ORDER 17 REQUIRING AMENDMENT 18 19 On July 8, 2019, Plaintiff Jorge Rivera, while incarcerated at the San Diego County 20 Central Jail (“SDCCJ”),1 filed this civil rights action pursuant to 42 U.S.C. § 1983 alleging 21 that the SDCCJ, the San Diego County Sheriff, and several unidentified SDCCJ officials 22 interfered with his right to religious worship and denied him access to the courts, medical 23 devices, medical treatment, and clean drinking water. See generally ECF No. 1 24 (“Compl.”). 25 / / / 26 27 1 Plaintiff subsequently filed a Notice of Change of Address indicating that he is now incarcerated at Mule 28 1 On January 28, 2020, the Court granted Plaintiff leave to proceed in forma pauperis 2 (“IFP”), conducted its initial screening, and dismissed Plaintiff’s Complaint sua sponte for 3 failing to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). See 4 generally ECF No. 8. The Court granted Plaintiff 45 days’ leave in which to file an 5 amended complaint that addressed all the deficiencies of pleading the Court had identified. 6 See id. at 11‒12; see also Lopez v. Smith, 203 F.3d 1122, 1130–31 (9th Cir. 2000) (en banc) 7 (“[A] district court should grant leave to amend even if no request to amend the pleading 8 was made, unless it determines that the pleading could not possibly be cured.”) (citations 9 omitted). 10 On March 2, 2020, approximately one week before his Amended Complaint was 11 due, Plaintiff filed a motion requesting additional time to amend. See generally ECF No. 12 9. On March 5, 2020, the Court granted Plaintiff’s motion and, at Plaintiff’s request, 13 provided him a copy of his original Complaint to review its deficiencies. See generally 14 ECF No. 10. 15 On April 10, 2020, Plaintiff filed a second motion requesting an additional extension 16 of time to file his Amended Complaint. See ECF No. 11. On May 7, 2020, the Court 17 granted Plaintiff’s motion and provided him with a blank civil rights complaint form for 18 his use and convenience. See generally ECF No. 12. 19 Finally, on June 5, 2020, Plaintiff filed a third motion for extension of time. See 20 ECF No. 13. On June 24, 2020, the Court granted that motion but explicitly warned 21 Plaintiff that no further extensions of time would be granted. See ECF No. 14 at 4. 22 Plaintiff’s Amended Complaint was due on August 4, 2020. Id. at 3‒4. 23 “If a plaintiff does not take advantage of the opportunity to fix his complaint, a 24 district court may convert the dismissal of the complaint into dismissal of the entire action.” 25 Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005). More than two months have passed 26 since the Court granted Plaintiff’s last motion for extension of time, and more than three 27 weeks have passed since his Amended Complaint was due. Plaintiff has failed to comply 28 with the Court’s several Orders, however, all of which have warned that his failure to 1 |}amend would result in the dismissal of his case. See, e.g., ECF No. 8 at 12; ECF No. 10 at 2 ||5; ECF No. 12 at 4; ECF No. 14 at 4. Plaintiff first initiated this suit more than a year ago 3 has been granted a total of more than six months in which to amend. “The failure of 4 ||the plaintiff eventually to respond to the court’s ultimatum—either by amending the 5 ||complaint or by indicating to the court that [he] will not do so—is properly met with the 6 ||}sanction of a Rule 41(b) dismissal.” Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th 7 ||Cir. 2004); see also Serrato v. City of Long Beach, No. CV 04-8634 ABC (AJW), 2009 8 || WL 1212833, at *13 (C.D. Cal. Mar. 25, 2009) (dismissing pro se litigant’s claims after 9 || plaintiff had “ample time” to discover identities of unnamed parties and had been granted 10 three extensions of time in which file a “legally adequate amended complaint’). 1] The Court therefore DISMISSES this civil action in its entirety based on □□□□□□□□□□□ 12 || failure to state a claim upon which § 1983 relief can be granted pursuant to 28 U.S.C. 13 1915(e)(2)(B) and 1915A(b), his failure to prosecute pursuant to Federal Rule of Civil 14 || Procedure 41(b), and his failure to amend as required by the Court’s January 28, 2020 15 ||/Order. Accordingly, the Court DIRECTS the Clerk of the Court to enter a final judgment 16 || of dismissal and to close the file. Finally, the Court CERTIFIES that an IFP appeal in this 17 would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). 18 IT IS SO ORDERED. 19 20 Dated: August 31, 2020 . tt f te 21 on. Janis L. Sammartino 9 United States District Judge 23 24 25 26 27 28 3