Holmes v. San Diego Sheriff Department ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANDRE LAMAR HOLMES, Case No.: 3:23-cv-1329-DMS-LR Booking No. 23724431 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILURE TO vs. PROSECUTE 14 15 SAN DIEGO SHERIFF DEPARTMENT, 16 SOUTH BAY DETNETION FACILITY, 17 ALVARADO, Deputy, 18 Defendants. 19 20 I. INTRODUCTION 21 On July 13, 2023, Andre Lamar Holmes (“Plaintiff”), an inmate proceeding pro se, 22 filed a civil rights action pursuant to 42 U.S.C. § 1983, along with an application to proceed 23 in forma pauperis (“IFP”). ECF Nos. 1, 2. Plaintiff alleged Defendants violated his 24 constitutional right to due process and to be free from cruel and unusual punishment. See 25 generally, ECF No. 1. On October 10, 2023, the Court granted Plaintiff’s IFP motion but 26 dismissed the complaint without prejudice for failure to state a claim. See ECF No. 3. 27 Plaintiff was given forty-five (45) days to file an Amended Complaint that cured the 28 pleading deficiencies identified in the Court’s dismissal Order. Id. at 10. Plaintiff was 1 cautioned that his failure to respond to the Court’s dismissal Order by filing an Amended 2 Complaint would result in the Court entering a final Order of dismissal of this action. Id. 3 DISCUSSION 4 The time for Plaintiff to respond to the Court’s Order has passed and the Court has 5 received no communication from Plaintiff. The failure of the plaintiff eventually to respond 6 to the court’s ultimatum–either by amending the complaint or by indicating to the court 7 that [he] will not do so–is properly met with the sanction of a Rule 41(b) dismissal.” 8 Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004); Henderson v. Duncan, 779 9 F.2d 1421, 1423 (9th Cir. 1986) (the Court has discretion to sua sponte dismiss a case for 10 lack of prosecution or failure to comply with a court order); see also Fed. R. Civ. P. 41(b) 11 (providing for involuntary dismissal for failure to prosecute or comply with the federal 12 rules or court order). 13 CONCLUSION AND ORDER 14 The Court DISMISSES this civil action in its entirety based on Plaintiff’s failure to 15 state a plausible § 1983 claim and his failure to prosecute this action. The Court DIRECTS 16 the Clerk to enter a final judgment of dismissal and close the file. 17 IT IS SO ORDERED. 18 Dated: May 7, 2024 19 Hon. Dana M. Sabraw, Chief Judge United States District Court 20 21 22 23 24 25 26 27 28