Mackey v. People of the State of California ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID ERNESTO MACKEY, Case No.: 3:20-CV-00931-TWR-KSC CDCR #C-56761 12 ORDER: Plaintiff, 13 v. 1) DISMISSING CIVIL ACTION 14 FOR FAILING TO STATE A CLAIM 15 PURSUANT TO 28 U.S.C. SECTION THE PEOPLE OF THE STATE OF 1915(e)(2)(B)(ii) 16 CALIFORNIA; WILLIAM D. MUDD, Judge Dept. 19; JEFFREY F. FRASER, 17 AND Judge of the Superior Ct.; AMALIA L. 18 MEZA, Judge of the Superior Ct.; CRAIG 2) DISMISSING FOR FAILURE TO N. TEOFILO, Psy. D., 19 PROSECUTE IN COMPLIANCE Psychologist/Psychiatric, WITH COURT ORDER REQUIRING 20 Defendants. AMENDMENT 21 22 23 David Ernesto Mackey (“Plaintiff”), a mentally disordered offender currently 24 civilly committed at Coalinga State Hospital pursuant to California Penal Code Section 25 2972, is proceeding pro se in this civil rights action pursuant to 42 U.S.C. Section 1983. 26 (See ECF No. 1, at 4, 50-52.) 27 /// 28 /// 1 I. Procedural History 2 On August 18, 2020, the Court1 granted Plaintiff leave to proceed in forma pauperis 3 (“IFP”) and dismissed his Complaint for failure to state a claim upon which relief could be 4 granted pursuant to 28 U.S.C. Section 1915(e)(2)(B)(ii). (See ECF No. 4, at 8-9.) Plaintiff 5 was advised of the deficiencies in his Complaint and granted 45 days leave in which to file 6 an Amended Complaint fixing them. (See id.) 7 Plaintiff’s Amended Complaint was due on or before October 2, 2020. But to date, 8 Plaintiff has not filed an Amended Complaint and has not requested an extension of time 9 in which to do so. “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 Plaintiff’s failure to state a claim upon which relief may be granted 16 pursuant to 28 U.S.C. Section 1915(e)(2)(B)(ii) and his failure to prosecute pursuant to 17 Federal Rule of Civil Procedure 41(b) in compliance with the Court’s August 18, 2020 18 Order. 19 The Court further CERTIFIES that an IFP appeal would not be taken in good 20 faith pursuant to 28 U.S.C. Section 1915(a)(3) and DIRECTS the Clerk to enter a final 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 27 1 This case was originally assigned to the Honorable Gonzalo P. Curiel. On September 28, 2020, it was 28 1 judgment of dismissal and close the file. 2 IT IS SO ORDERED. 3 4 ||Dated: November 5, 2020 —_—_ [5 1S bre 6 Honorable Todd W. Robinson 5 United States District Court 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28