Mourning v. Office of the Attorney General ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JEFFREY LEE MOURNING, Case No. 3:20-cv-00804-AJB-JLB CDCR# BK-7383, 12 ORDER: Plaintiff, 13 vs. (1) DISMISSING CIVIL ACTION 14 FOR FAILING TO STATE A CLAIM OFFICE OF THE ATTORNEY 15 AND FOR SEEKING MONETARY GENERAL; ERIC A. SWENSON; DAMAGES AGAINST IMMUNE 16 ALLEN BROWN, DEFENDANTS PURSUANT TO 17 Defendants. § 1915A(b); AND 18 (2) DISMISSING FOR FAILING 19 TO PROSECUTE IN COMPLIANCE WITH COURT ORDER 20 REQUIRING AMENDMENT 21 22 23 24 I. Procedural Background 25 Plaintiff Jefferey Lee Mourning, currently incarcerated at Ironwood State Prison in 26 Blythe, California, is proceeding pro se in this civil action filed on April 27, 2020, pursuant 27 to 42 U.S.C. § 1983. See ECF No. 1 (“Compl.”). Plaintiff did not file a motion to proceed 28 in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) and instead remitted the $400 1 || filing fee required by 28 U.S.C. § 1914(a) to commence a civil action. See ECF No. 1, 2 || Receipt No. CAS120979. 3 On May 14, 2020, the Court dismissed his Complaint for failing to state any claim 4 ||upon which relief could be granted and for seeking monetary damages against immune 5 ||defendants pursuant to 28 U.S.C. § 1915A(b). (See ECF No. 2.) Plaintiff was advised of 6 || his pleading deficiencies and was granted until June 15, 2020 to file an amended pleading. 7 || dd.) 8 As stated above, Plaintiff's Amended Complaint was due on or before June 15, 2020. 9 ||But to date, Plaintiff has not filed an Amended Complaint, and has not requested an 10 extension of time in which to do so. “The failure of the plaintiff eventually to respond to 11 court’s ultimatum—either by amending the complaint or by indicating to the court that 12 || [he] will not do so—is properly met with the sanction of a Rule 41(b) dismissal.” Edwards 13 || v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004). 14 |/II. Conclusion and Order 15 Accordingly, the Court DISMISSES this civil action in its entirety without prejudice 16 || based on Plaintiff's failure to state a claim upon which § 1983 relief can be granted and for 17 ||seeking monetary damages against immune defendants pursuant to 28 U.S.C. § 1915A(b), 18 || and his failure to prosecute pursuant to Fed. R. Civ. P. 41(b) in compliance with the Court’s 19 14, 2020 Order. 20 The Court further CERTIFIES that an IFP appeal would not be taken in good faith 21 || pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final judgment of 22 dismissal and close the file. 23 IT IS SO ORDERED. 24 25 ||Dated: September 14, 2020 © □□ 26 Hon. Anthony J.Battaglia 27 United States District Judge 28 2 oo